by J. J. Bowden
Juan, Rafael, and Ignacio Elias y Gonzales appeared before the Treasurer General of Sonora, Jose Maria Mendoza, on July 21, 1831, and filed an application to purchase the public lands located at the places and springs known as Santa Barbara, Naidenibacachi, Agua Prieta, and Coabuyona. They described the requested lands as being bounded on the north by the Chiricahua mountains; on the east by the mountains of Coabuyona; on the south by the lands of the Sinaloas; and on the west by the lands of Sauz. They stated that the lands they owned at San Pedro and Cienega de Heredias were no longer sufficient to maintain their livestock which strayed, in search of food and water, to the requested lands. However, since they were public lands, people were free to enter upon the lands to steal and scatter their herds, and thereby caused them to suffer great inconvenience and damage. Upon investigating the petition, Mendoza found that the three Elias brothers had a great abundance of cattle and their lands were overcrowded. Therefore, on October 10, 1831, he commissioned Joaquin Vicente Elias, a resident of San Ignacio, to survey, cause the lands to be appraised, give public notice of the proposed sale of the requested lands as required by the Act of May 20, 1825,[1] and return the proceedings to him so the premises could be sold at public auction. Joaquin Vicente Elias accepted the commission but postponed the survey due to the extreme hostility of the Apaches until August 20, 1835. On that date he summoned the interested parties and adjoining landowners and advised them that a survey of the requested tracts would be commenced on September 28, 1835. He also appointed a surveyor, accountants, and markers as required by law. On the appointed date, the survey party proceeded to the valley called Agua Prieta where the survey of the first tract was commenced. A point on the edge of the lagoon or pool of water, also known as Agua Prieta, which was located in the center of the valley, was selected as its center point. After measuring a fifty vara cordel a line was run south 59 cordeles to a stone mound built in a clump of willows located in the middle of the valley. Returning to the center point, a line was run north 100 cordeles to a stone mound erected on a very small hill fronting on the east Silla Pass. Returning once again to the center point, 168 cordeles were measured and counted. Towards the east to a stone mound erected on a high hill located to the right of the pass through which the old road from Santa Cruz to San Bernardino ran. Returning to the center point, a line was run westwardly 240 cordeles which terminated at a stone mound erected on a small hill that was a little beyond a long sloping red hill with a ledge towards the south and facing the highest peak in the San Jose Mountains. Due to approaching darkness, the survey was suspended and the party returned to the center point for the night. Early the next morning they commenced “squaring the survey by running a line around its exterior boundaries. They commenced at the north center monument and ran east 168 cordeles to a monument built on a small bill near Silla Pass and to the right of two larger ones. Retracing their steps to the north center monument, the survey party measured thence westward 240 cordeles ending at a stone monument which they built on a small hill. Turning south, they measured 89 cordeles to the west center monument. Continuing south, they counted 60 additional cordeles to a stone monument which they built at the foot of a high hill facing another bill with a black crest which was located to the south, and to the east was a pass with two hills with red ledges to the left of the pass. Running thence east, they ran 240 cordeles to the south center monument. Continuing in an easterly direction along the foot of Perrillo Moutain, they measured 178 cordeles, ending at a stone monument erected on the slope of the first pass on the right. Turning thence north 59 cordeles were measured to the east center monument, where the survey terminated. They estimated that the tract contained six short sitios. The applicants stated that they were satisfied with the proceedings.
Turning its attention next to the surveying of the lands at Santa Barbara and Naidenibacachi, the Eliases were requested to designate the center point of the second tract. A stone mound erected on a hill located a little east of the mid‑way point between such places was selected. A line was run thence north 165 cordeles to a stone mound erected on a hill, which was located to the right of three high hills and a little beyond Ojo de Naidenibacachi and also facing an ash forest. Returning to the center point, a line was extended south 258 cordeles and terminated at a stone mound erected 3 cordeles from the spur of a mountain. This monument was also on a line with the corner of the Ojo del Baltazar and Gato Grant which had been sold to Jose Rafael Elias, his son, Juan Jose Elias, and his wife, Guadalupe Perez. Returning to the center point, a line was run thence west 200, cordeles to a stone monument on white hill which was located a little higher up and beyond Santa Barbara and on the other side of a creek. It was also on a straight line with the Magallanes Mountain, which was a “good distance off.” Returning to the center point, a line was run thence 63 cordeles to a stone mound situated on a white ledge of a little hill near a gulch and facing Naidenibacachi Mountain. Since evening approaching, the survey party retired for the night. On the following morning, the “squaring” of the tract was commenced at the north center monument. A line was run thence 53 cordeles ending at a. monument erected in a low valley at the foot of a jazcate, the only one in the locality, and fronting some mountains with red ledges. This corner was on a line with and 33 cordeles north of the west center monument of the Agua Prieta Grant. Returning to the north center monument, a line was run 113 cordeles west ending at a stone monument on a wooded traversing spur of the mountain with a peak on the south end and a rocky arroyo on the north end. The line turned and ran thence in a southwesterly direction 250 cordeles to the west center monument and thence south 200 cordeles to a monument at the foot of the Magallanes Mountain which marked the boundary of the Ojo del Gato Grant, which was owned by Tomas Romero. The line turned east and ran thence along the boundaries of the Ojo del Gato and Ojo del Baltazar Grants 273 cordeles passing the south center monument at 200 cordeles to a stone mound erected at the “first sloping place of the companeros” which was located on a bare mesa that fronted on the north a clump of cottonwoods, which were the largest on the Santa Barbara Valley and on the south the Arroyo Hondo. Turning thence north, the line measured 258 cordeles to the east center monument and 100 cordeles to the west center monument of the Agua Prieta Grant. Here the survey terminated, and the area contained in the tract was calculated at eleven and a half sitios and twelve and a half caballerias of land.
Next, Joaquin Vicente Elias appointed Jose Maria Lugue and Julian Sillas, who were “intelligent experts with practical experience,” as appraisers. They appraised the eighteen and a half sitios covered by the two tracts at 432.50 pesos on October 1, 1835. One of the sitios in the Aqua Prieta tract contained a spring, and the other five and a half were absolutely dry. They fixed the value of the sitio with water at 60 pesos. The dry tracts were valued at 15 pesos each. One of the sitios the Santa Barbara and Naidenibacachi tract contained an abundance of water and was appraised at 80 pesos another sitio contained good water and was valued at 60 pesos. Nine and a half sitios were without permanent water and were appraised at 15 pesos each. No value seems to have been set for the twelve and a half caballerias.
For some unexplained reason, no further action was taken on the grant for eight months. Offers for the purchase of the land covered by the two tracts were solicited by Joaquin Vicente Elias between June 4 and July 4, 1836. No bids were received. The proceedings were forwarded to Mendoza three days later for his further action. Mendoza, in turn, referred the proceedings to the Promoter Fiscal, Pedro Rodriguez, on September 9, 1836, for an opinion. Three days later, Rodriguez submitted his opinion, stating that there was no obstacle to the sale of the property by the Board of Sale at public auction. Mendoza, being satisfied with the opinion, by decree dated September 15, 1836, ordered the board to proceed with the sale. On the same day and on the next two succeeding days, the board offered the tracts for sale, and there being no bidders the 18 sitios and twelve and a half caballerias were auctioned off to Juan, Rafael and Ignacio Elias for the appraised price. They promptly paid the consideration, and a receipt evidencing the payment was attached to the expediente which was filed in the archives in the Treasurer’s office. A title deed was given to the grantees for their protection on December 28, 1836, and a memorandum of the sale was entered in the Toma de Razon.
Camou Brothers, a partnership, doing business in Guaymas, Mexico, purchased the grant from the heirs of the three grantees, filed the testimonio of the grant and petitioned[2] Surveyor General John Wasson on February 26, 1875, seeking the confirmation of its title to the two tracts. Wasson commissioned Special Agent Rufus C. Hopkins to go to Hermosillo, Mexico, to investigate the claim. After examining the papers in the Mexican archives, Hopkins reported that the expediente was found in its proper place in the archives, it was written on the corresponding stamped paper, the proceedings of survey, valuation, publication, and sale were regular, and the expediente was unquestionably a genuine document. Before any further action was taken on the claim, Pascual Camou formally withdrew the claim from the attention of the Surveyor General on the ground that there was no land in American territory covered by the grant and requested the return of the testimonio Wasson mailed it to him on July 21, 1880.
Frank Ely acquired an interest in the grant from the Camou Brothers in 1886. After the creation of the Court of Private Land Claims, Ely’s administrator, Santiago Ainsa, filed suit[3] on February 28, 1893 in that forum seeking the confirmation of the portion of the Agua Prieta Grant located north of the International Boundary. On February 14, 1899 Ainsa filed an amended and supplemental petition and map. The map showed that the Agua Prieta Grant covered 163,797.48 acres, 68,530.5 acres of which were located north of the International Boundary Ainsa offered to pay the United States for any excess acreage contained in his portion of the grant and tendered the sum of $600 as payment for such excess and $200 to cover the cost of determining its extent. The government filed an answer, putting in issue the allegations contained in Ainsa’s petition, and setting up, as an affirmative defense, that the grant was located entirely within Mexico.
Upon the trial of the case, Ainsa tendered in evidence his title papers and oral evidence tending to show the correctness of the map attached to his amended petition. It also showed that the center point of the Aqua Prieta Grant was located about three and a half miles south of the International Boundary. Thus, if the grant was laid off according to the metes and bounds set forth in the grant papers, the grant would cover about 28,199.66 acres, all of which would be situated in Mexico. However, he contended that the natural objects described as boundaries controlled and not the quantity named. He argued that the quantity only fixed the price of the tract and the monuments and natural objects delineated the true extent of the grant. Continuing, he stated that, if the original surveyor made a mistake in estimating the area contained in the grant, the whole tract still passed to the grantees, subject only to a duty on their part to pay for the excess upon the ascertainment of its extent at the rate which prevailed at the date of the original grant. The government, on the other hand, contended that only the quantity named in the title papers passed to the grantees and the difference between the quantity named in the title papers and the area within the out boundaries remained the property of Mexico and such excess could become the property of the grantees only upon the payment of the fair value of such land at the date of the sale of the excess. It argued that, since the grantees had not taken advantage of the privilege of purchasing the excess prior to the transfer of jurisdiction over such land to the United States under the Gadsden Treaty, such surplus, if any, passed to the government as unappropriated public domain. The government also offered proof which tended to prove conclusively that not only was all of the Agua Prieta Grant located entirely within Mexico but that a proceeding had been instituted by the Camou Brothers, Ainsa’s predecessor in title, in 1880 to purchase the surplus land located between the grant and the International Boundary and such strip, after being judicially determined to be surplus land, was sold to them. It asserted that this was the reason why Camou withdrew the claim and title papers from Wasson’s office and such adjudication estopped Ainsa from denying the validity of such determination. In the alternative, the government insisted, on the basis of the Ely case,[4] that the grant was one of quantity and, as the quantity was confessedly satisfied within Mexican territory, there could be no confirmation by the court.
By decision[5] dated November 27, 1899, it was stated that, notwithstanding the fact that no specific quantity of land was asked for in Elias’ petition to Mendoza, Section 22 of the Act of May 20, 1825,[6] authorized the sale of land to the applicants only upon proof that they needed the premises for ranching purposes and, Then, only at public auction after having been surveyed, appraised and advertised. This procedure was necessarily prescribed in order to give the Mexican officials and prospective bidders detailed information on the quantity of land being offered for sale. Since the expediente shows that six and a half sitios were surveyed, appraised and sold and the grantees were satisfied with the results, the court stated it was satisfied that the sale was one of quantity. Therefore, it held that, in view of the fact that the six and a half sitios constituting the cabida legal were located wholly in Mexico, the claimants had no valid claim against the United States. Ainsa appealed to the Supreme Court, which affirmed[7] the Court of Private Land Claims’ decision on March 17, 1902, stating that a Mexican grant that was made with great care, and in which the quantity covered thereby repeatedly was recited, was one of quantity, notwithstanding that a general description by natural objects was requested in the applicant’s petition. A claim for the surplus was not an equitable title; and, therefore, the court had no power to confirm such an imperfect claim, especially one filed after March 3, 1893.
[1] Reynolds, Spanish and Mexican Land Laws, 129-131 (1895).
[2] The Naidenibacachi, Agua Prieta, and Santa Barbara Grant, No. 1 (Mss., Records of the S.G.A.). The Camou Brothers also presented the Ojo del Baltazar Grant to Surveyor General John Wasson for investigation and confirmation on February 26, 1875. The grant, which contained ten and one‑third and three and one-fifth caballerias had been sold to Rafael Elias, his son Jose, and wife Guadalupe, on December 28, 1836, by the Board of Sale of the State of Sonora. Since this grant, which was located just south of the Agua Prieta Grant, obviously was located wholly within the Republic of Mexico, the Camou Brothers withdrew the title papers and abandoned the claim. The Ojo del Baltazar Grant, No. 2 (Mss., Records of the S.G.A.).
[3] Ainsa v. United States, No. 5 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[4] Ely v. United States, 171 U.S. 220 (1898).
[5] 1 Journal 163 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[6] Reynolds, Spanish and Mexican Land Laws, 129‑131 (1895).
[7] Ainsa v. United States, 124 U.S. 639 (1902).
San Pedro Grant; J.J. Bowden's research on land grants in the southwest.