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San Rafael de la Zanja Grant

Manuel Bustillo, a citizen of the Presidio of Santa Cruz, petitioned the Governor of Sonora and Sinaloa, Antonio Cordero, on July 21, 1821, and stated that he had a sizeable herd of livestock and needed a tract of land for their preservation. Therefore, he asked leave to purchase the three square leagues lying north of and adjoining the lands of the presidio and another league situated east of it at the place called Cajoncito. The application was approved on the same day without prejudice to third parties; and the Commandant of Santa Cruz, Simon Elias Gonzales, was ordered to survey the tract, cause it to be appraised, and solicit bids for the purchase of the premises for thirty consecutive days. Gonzales accepted the commission on October 4, 1821, and appointed Jose Antonio Calvo as counter, Tomas Gaumea as noter, and Felipe Jaramillo and Leandro Romero as measurers. He also ordered the survey to be commenced on the following day, after summoning Bustillo and the adjoining landowners to witness the proceedings. After a waxed and twisted hemp cord of fifty varas had been measured against a Castilian vara bar, Bustillo requested that, inasmuch as the Cajoncito was located inside the presidio’s ejidos the four leagues be given to him in one tract. The survey was commenced at a central point which was named San Rafael de la Zanja. A line was run thence north two hundred cords to an oak marked with a cross and a pile of stone which was located on a mesa and situated on the bank of the arroyo which ran towards the Penasco. Returning to the central point, the survey party ran a line two hundred cords in length southward to the mouth of the Canada del Potrero which marked the northern boundary of the ejidos of the presidio. The survey party, after returning again to the central point, ran a two hundred cord line eastward to a large pile of stone placed on a continuous mesa beyond the Canada del Potrero. Upon returning to the central point, the surveyors ran westward one hundred thirty-three cords but were forced to stop due to roughness of the terrain. Therefore, they estimated the western boundary would be located on top of a high mountain situated in the Sierra de la Plomiza range almost southwest of the little hill known as El Caleso. Here the survey was halted due to darkness. Early the following morning the survey party went to the oak tree and mound which marked the northern boundary and proceeded to survey its exterior boundaries. Finding the country east of this point too rough to survey, they estimated that the northeast corner of the tract was located at the Ojo del Carrisillo, which was located in the Sierra del Cobre. Since the territory west of the tree was also too rough to measure, the estimated that the northwest corner was located at the foot of a red hill standing in an open plain between the Penasco and Sierra de la Sonoyta. They then fixed the west boundary as a line running thence south four hundred cords along the Sierra Plomiza past the Puerto de San Antonio to the two small hills which formed the westerly boundary of the presidio’s ejidos. They ran thence east four hundred cords along the north boundary of said ejidos past the south boundary monument to a point known as Jaralito, which also marked the northeast corner of the ejidos. The east boundary of the tract was run thence northward four hundred cords to Carrisillo Spring. Upon the completion of the survey, Gonzales appointed Alejo Bedolla and Tornas Gaumea as appraisers to evaluate the premises. Noting that three of the sitios contained water, they valued them at sixty pesos each. The fourth sitio which was waterless, was valued at thirty pesos. Three witnesses testified that Bustillo had sufficient means to stock the premises. For thirty consecutive days commencing on October 10, 1821, notice was given that the tract had been valued at two hundred ten pesos and would be sold on account of the Royal Patrimony. Since no third party submitted a bid during the thirty days period, the proceedings were transmitted to Cordero on November 30, 1821, for his further action. Cordero referred the matter to Promoter Fiscal Francisco Perez, who, by opinion dated December 11, 1821, recommended that the tract be offered for sale on three consecutive days and sold on the third at public auction by the Superior Board of Sales to the highest bidder. Cordero’s successor, Syracio Bustamento, ordered the sale on January 7, 1822. The Superior Board of Sales assembled on the following day; and, upon the sound of tile drum, a large number of persons assembled to hear the first solicitation of bids. Ramon Romero, for himself and on behalf of the residents of Santa Cruz, opened the bidding at ten pesos above the appraised value. Thereafter, he and Bustillo bid against each other until they ran the price up to 1,212 pesos with the final bid being made by Romero. On January 9, 1822 the second offer was made at which Romero, the only bidder, offered, 1,200 pesos for the premises. The next day, at the final offering, he renewed his offer of 1,200 pesos and the auctioneer sold the land to him and the other residents of Santa Cruz for that amount plus costs of, 97 pesos 6 reals and 5 grains. Bustamento approved the sale on January 11, 1822, ordered Romero to pay the purchase price and costs to the public Treasury of Arispe, and ordered the proceedings be transmitted to the Superior Junta of the Royal Hacienda for its approval. Romero promptly made the payment and was given a receipt. However, before the sale could he approved, the Superior Junta of the Royal Hacienda was abolished. No further action appears to have been taken on the grant until May 15, 1825, when the recently created Commissary General of the State of Sonora and Sinaloa, Juan Miguel Riesgo, issued a title to Romero and “the other residents in interest” for “the four sitios of land for breeding cattle comprising the place called San Rafael de la Zanja,” under Article 81 of the Ordinance of Intendants.[1] At the end of the title papers is the following recitation:

Entry of this title is made at folio 3 of book No. 2 that exists in this Commissariat General.

The expediente of the grant was filed in the archives at Hermosillo, Mexico, but was not listed in the Toma de Razon.

On February 28, 1880 the heirs of Ramon Romero filed the testimonio of the grant in the Surveyor General’s office at Tucson, Arizona, and petitioned[2] Surveyor General John Wasson, seeking the recognition of the validity of the grant insofar as it covered all the land described in the survey, except the approximately 4,000 acres lying south of the International Boundary. They also alleged that Romero had been placed in judicial possession of the grant and, up until the date of his death in 1873, occupied and possessed the premises. Noting that the grant had been made to Romero and the other residents of Santa Cruz, the petitioners stated they were unable to ascertain the names of such per­sons and requested that the question be left to the local courts for determination. Therefore, they asked that the grant be confirmed and patented to "the heirs or legal representatives of the person or persons who were entitled to take and hold under the original expediente for the use and benefit of those persons only who prove to be the true heirs of said ranch.”

Thereupon, Wasson caused the grant to be investi­gated by Special Agent R. C. Hopkins, who went to Hermosillo, Mexico, and examined the original title papers. As a result of his examination, he reported that the expediente contained thirty-seven pages, was found in the proper place in the archives, that the expediente was written on the proper stamped paper, and he had no doubt or suspicion concerning the genuine character of the title papers. Wasson, by decision[3] dated April 28, 1880, found that the concession was valid but the grant papers evidenced an intent to convey only four square leagues of land and that the surveyors had erred in extending the lines two leagues in each of the cardinal directions. Therefore, he recommended that the grant be confirmed to the legal representatives of the original grantees to the extent of four square leagues and no more, to be so located as to include the initial or central point of the original survey.

Year after year passed with no action being tan by Congress on the claim. Meanwhile, Alfred A. Green systematically purchased the interests of Romero’s heirs.[4] Green entered into a contract in 1880 wherein he agreed to sell R. R. Richardson 90% of the grant for $200,000 upon its confirmation. Richardson, in turn, sold an interest in the contract to Colin Cameron.[5] Cameron also acquired the interests of many of the other citizens of Santa Cruz.

In an effort to bring matters to a head, Cameron fenced a portion of the grant lying within the boundaries of the grant but outside the area recommended for confirma­tion by Wasson. The United States filed a civil suit against him on September 6, 1886, under the Act of February 25, 1885,[6] for unlawfully enclosing a portion of the public domain. Cameron admitted constructing the fence but argued that all the lands within the grant were reserved from sale or other disposal until Congress acted on the claim. The Arizona District Court held that it had authority to look into the defendant’s title in order to determine whether he had a color of title to the lands in question but not the validity of the grant.[7] It found that Cameron had no color of title to the enclosed land; and, therefore, the enclosure was unlawful. Cameron appealed to the Supreme Court of Arizona, which affirmed.[8] He further appealed the decision to the United States Supreme Court, which, while expressly disclaiming any intention of passing upon the validity of Cameron’s title, held[9] that there was color of title suffi­cient to take the case outside of the operation of the statute, reversed the judgment against Cameron, and remanded the case with directions to dismiss the petition.

The continued delay in obtaining the confirmation of the grant caused Green to become dissatisfied over his arrangement with Richardson and Cameron. Therefore, he attempted to terminate the contract. The creation of the Court of Private Land Claims offered Green an opportunity to secure a new hearing on his claim that the grant covered all of the 152,889.62 acres located within the area bounded by the survey instead of just four leagues or 17,353.85 acres. His argument was that the concession was a sale of land by metes and bounds and not one of quantity. It also permitted him to air his differences with Richardson and Cameron and assert his claim that Romero was the sole grantee. On 10 February 27, 1893 Alfred A. Green filed his petition[10] seek­ing the confirmation to him of the portion of the grant located in Santa Cruz County, Arizona. Cameron filed an answer and cross action on March 25, 1895, in which he denied Greens claim of being the sole owner of the grant. He also asserted that the supreme Court had found that his fence was within the exterior boundaries of the grant and that such finding was res judicata insofar as the government’s contention that the grant should be limited to four square leagues. Cameron also tendered the sum of $1,359 as payment for the excess land covered by the portion of the grant located in Arizona and $200 to cover the cost of determining the extent of the surplus acreage.

The case came up for trial during the court’s May, 1899, session, at which time Green failed to appear and the cause was tried on Cameron’s cross action. He presented the original titulo issued by the Mexican government and a certified copy of the expediente found in the archives at Hermosillo. A large amount of oral evidence was introduced, tending to establish the location of the natural and artificial monuments described in the survey and showing that the boundaries thus established embraced 152,889.62 acres. Evidence was also introduced by Cameron connecting himself with a number of the original grantees and tending to show Green had no title at the date of the filing of the suit, and that all title originally held by him had passed to Cameron.

Four issues were raised by the government:

(1) The extent of the grant.

(2) The location of its boundaries.
(3) Whether the grant was duly recorded within the meaning of Article VI of the Gadsden Treaty.[11]

(4) Whether Cameron was barred from prosecuting his action as a result of the filing of his cross petition subsequent to March 3, 1893, the deadline prescribed by the Act[12] creating the court.

Cameron strenuously urged that the intention of the Mexican government was to grant the whole area contained within the natural and artificial monuments; whereas, the government contended that the grant should he limited to four leagues mentioned in all the title documents except the survey. It also argued that the boundaries should be located one league in each of the cardinal directions from the center point. Cameron argued that the grant was duly recorded since it was found in the proper Mexican Archives and the expediente contained a recitation that it had been recorded in the proper book. The government, on the other hand, argued that it was not duly recorded, since it was not listed in the Toma de Razon.

By majority decision[13] dated February 10, 1900, the court held that the concession was the sale of a specific quantity of land mentioned in the title papers and should be located as contended by the government. Next it found that there was sufficient evidence of the grant in the Archives of Mexico to satisfy the requirements of Article VI of the Gadsden Treaty and the listing of the grant in the Toma de Razon was not essential since such notation was a mere ministerial duty imposed upon the officer issuing the title. Finally it held that, since the grant was complete and perfect at the date of the Gadsden Treaty, the statute created no limitation as to the time within which to institute an action for the confirmation of the grant. Justices Thomas C. Fuller and W. M. Murray dissented on the ground that the grant was not duly recorded as required by the Gadsden Treaty.

Since Cameron was reluctant to lose some of the finest pasture lands in Southern Arizona without exhausting every effort available to him, he appealed to the United States Supreme Court, which affirmed[14] the decision on April 28, 1902. The grant, as confirmed, was surveyed for 17,474.06 acres and patented on August 2, 1905.[15]

 

 


[1] Reynolds, Spanish and Mexican Land Laws, 60 (1895).

[2] The San Rafael de la Zanja Grant, No. 9 (Mss., Records of the S.G.A.).

[3] Ibid.

[4] The hostility of the Apaches increased between 1833 and 1849 to the extent that all of the ranchos, pueblos and towns in the area were completely destroyed, with the exception of Santa Cruz. In 1849 its population was reduced to eight families and one yoke of cattle, which consisted of an ox and a cow. At this time the presidio was completely isolated. Five men stood guard while three farmed a small patch of land enclosed in an adobe wall. They lived partly on roots, and their fuel came from the rafters and doors of vacant and desolate houses of their slaughtered friends and relatives. They finally were rescued by a party of gold seekers from Texas. Romero, his wife and family, joined the Texans and fled to California. Two of Romero’s sons, Francisco and Pedro, returned to the grant after the United States acquired the Gadsden territory but were forced to abandon the land shortly thereafter. They sold their interests to Green in January, 1880. He later purchased the balance of the Romero interest from the heirs living in California. Green, “History of Rancho San Rafael de la Zanja” 6 (1895).

[5] Ibid.

[6] An Act to Prevent Unlawful Occupancy of the Public Lands, Chap. 149, 23 Stat. 321 (1885).

[7] The court distinguished the Act of July 22, 1854 (10 Stat. 308) which created the office of Surveyor General of New Mexico and reserved lands from disposal until Congress acted on them from the Act of July 15, 1870 (16 Stat. 304) which did not contain a provision requiring the withdrawal of lands covered by private land claims.

[8] United States v. Cameron, 3 Ariz., 100, 21 P.177 (1889).

[9] Cameron v. United States, 148 U.S. 301(1893).

[10] Green v. United States, No. 2 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. DistJ.

[11] 6 Miller, Treaties and Other International Acts of the United States of America, 293-302 (1942).

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

[13] 1 Journal 169‑171 (Mss., Records of the Ct. Pvt. L. Cl.).

[14] United States v. Green, 185 U.S., 256 (1902).

[15] BLM to J.J.B., Aug. 8, 1968.