by J. J. Bowden
Following the conquest of New Mexico in the summer of 1598, Governor Juan de Onate established his headquarters at the Pueblo of San Gabriel, which the Tewa Indians voluntarily gave to the Conquistadors. San Gabriel west bank of the Rio Grande not far from junction with the Chama River. However. Onate was not satisfied and was continuously looking for a more suitable location for his capitol During his reconnaissance expedition into the Arkansas River Valley in the Spring of 1605 Onate was compelled to cross the Santa Fe River at a point near the present city of Santa Fe. The locale greatly impressed Onate. Its adequate water supply, fertile soil abundance of timber, mild climatic conditions and strategic position for dealing with both the hostile mountain and plains Indians prompted Onate to select it as the site for the permanent capitol of New Mexico. Since Onate’s expedition was not financially successful, there was some question as to whether or not the colony would be abandoned and permission to move it to the new site was not granted by the Spanish officials until some time after the arrival of Governor Pedro de Peralta in 1609. From 1609 until 1680 Santa Fe was continuously occupied and was the principal settlement in New Mexico. In 1680 the Pueblo Indians revolted and drove the Spaniards from New Mexico. The Spaniards retreated to El Paso del Norte where they remained until 1692, when Governor Diego de Vargas reconquered the province. The capitol and villa of Santa Fe which had been partially destroyed, and all of its archives destroyed by the Indians, were reoccupied by the Spaniards in 1693. The Tano Indians who had taken to residency in the Governor’s Palace were settled in the upper Santa Cruz River Valley. Three more years were required to completely pacify the pueblo Indians and restore peace to the region.[1]
By 1715 the population of Santa Fe had increased to the point where the valuable agricultural lands in the immediate vicinity of the villa could no longer be used for pasturage of livestock. Therefore, the grass and wild hay which grew upon the cienega located just west of the town were gathered to feed their cows and horses. In an effort to farm some of “this land” adjacent to the cienega, Captain Diego Arias de Quiros cleaned out the spring and dammed up its water. This action caused the inhabitants of Santa Fe no little concern, for the appropriation and diversion of its water would cause the grass and wild hay to die and cause the cienega to become worthless. To avoid further confusion, the Cabildo petitioned the governor for a grant covering the cienega and its water. On July 27, 1715 Governor Juan Ignacio Flores Mogallon granted the premises to the inhabitants of Santa Fe and ordered Arias to release the water.[2] In 1742 many of the leading residents of the villa petitioned the governor for and received individual land grants on the outskirts of the city. Expedientes for some two dozen of these grants are now contained in the Archives of New Mexico.
Prior to 1874 the Santa Fe residents never claimed any land in a corporate capacity, except the cienega and the land upon which Governor’s Palace was located[3] and, not withstanding its long and continuous existence, there is no evidence that the Ayuntamiento of Santa Fe ever allotted or distributed any land among the inhabitants of the city. On April 10, 1874, Gaspar Ortiz y Alarid, the Probate Judge for Santa Fe County, petitioned Surveyor General James K, Proudfit, on behalf of the inhabitants of the City of Santa Fe seeking the confirmation of a grant covering a four‑square league tract of land to be measured from the stone monument in the center of the plaza which the City had allegedly acquired by operation of law. In his petition. Ortiz stated:
That from time immemorial the said City of Santa Fe has been in existence, inhabited and occupied by a large population, and has always been prominent in the historical annals of the country; that it has been for more than two centuries, and now is, the principal political and commercial point in New Mexico, and during the whole of that period has been and now is the seat of the civil and military governments here under the several nationalities to which its inhabitants have at different times belonged.
That as the city of Santa Fe was in existence during the whole period of Spanish sovereignty in New Mexico terminating here in 1822 it is certain that under the Spanish laws, usages, and customs, the inhabitants thereof were as a community entitled to receives and your petitioners believe and claim did in fact receive a grant from the crown for at least the four square leagues of land and commons which they now claim. . . .
That your petitioners do not know, from records or otherwise, precisely what land, if any, was so granted to their ancestors or the quantity or figures thereof but they assert that they were as a community possessed of all the requisites entitling them under the Spanish laws, usages and customs to a body of land of four square leagues in area to embrace their settlement at Santa Fe. . . .
That to show that the ancestors of your petitioners were and these as their descendants are, as a community entitled as aforesaid to a concession of land and commons here claimed, the following laws and regulations of the Spanish government taken from the “Recopilación de las Indians”, are cited in evidence, to‑wit.
Law VI ‑ Granting to any settlement of not less than thirty white inhabitants four square leagues of land, provided the same be not less than five leagues from any other such settlement and do not prejudice the interests of any Indian pueblo or of private parties.
The petition closed with a prayer that the claim be investigated, confirmed and patented to the Probate Judge of Santa Fe County in trust for the use and benefit of the landholders and inhabitants within said tract, and for the City of Santa Fe, until the city could be incorporated and thereby become the rightful custodian of the patent.[4]
Proudfit promptly proceeded with the investigation of the claim, and on April 13, 1874 announced his opinion in which he stated:
I have not deemed it necessary to take testimony as to the existence of the community under the Spanish and Mexican rule for centuries and admit this patent fact of history.
I believe that under the Spanish rule when this community originated as a civilized establishment it was the law and practice to concede to such colonies at least four square leagues of land for cultivation and commons, and that the petition of Judge Ortiz y Alarid truly states the law of that time.
I, therefore recommend that Congress confirm and quitclaim to said Judge of Probate, in trust for the use and benefit of the separate owners of said community, four square leagues of land, having for center the large stone monument on the public plaza of said city of Santa Fe, known as the soldiers monument, and that the sides of said tract shall be one Mexican league from the center of said monument, and that the said sides or the lines thereof shall be north and south and east and west, corresponding to the four cardinal points of direction, saving and excepting from said confirmation and quitclaim all lands within said limits which belonged to the Mexican nation or the province of New Mexico at the time of the American occupation of the country in August. 1846, and also the Fort Marcy military reservation within said limits.[5]
The grant was surveyed in September; 1877, by Deputy Surveyors Griffin & McMullin for 17,361.11 acres.[6]
Notwithstanding Proudfit’s favorable opinion and the fears and anxieties which were raised in the minds of the more than 7,000 inhabitants of Santa Fe as a result of the continual delay in acting upon their petition, the claim was still pending when the Court of Private Land Claims was established in 1891. Due to the importance of this claim, it was one of the first presented to the Court of Private Land Claims after it moved to Santa Fe from Denver on December 1, 1891. The suit was filed on July 14, 1892 by the Board of County Commissioners of Santa Fe County, as trustee for the use and benefit of the inhabitants of the ancient Villa of Santa Fe against the United States for the confirmation of a tract of four square leagues of land,[7] The plaintiff alleged that sometime prior to 1680, the Villa of Santa Fe had received a pueblo grant from the King of Spain and juridical possession thereof had been given covering a tract of four square leagues of land measured from a central point located at the center of the Villa’s plaza. Continuing the plaintiff alleged that the grant was evidenced by a testimonio but that the archives and records of the Villa were destroyed during the Pueblo Revolt of 1680, and therefore, the title could not be produced. In the alternative, the plaintiff averred that each new Spanish Villa having a population in excess of thirty‑five families and located more than five leagues from a similar community was by operation of law entitled to a tract of four square leagues of land. Therefore, since at all times subsequent to its re‑establishment in 1693, Santa Fe had a population in excess of thirty-five families and was located more than five leagues from any other Spanish community entitled to a tour square league grant by operation of law effective as of the date of its establishment or re‑establishment. The government demurred on the grounds that the plaintiff had no authority to prosecute the claim.[8] The court sustained the demurrer and on December 14, 1892, dismissed the cause without prejudice to the rights of the City of Santa Fe.
In the meantime the City of Santa Fe had been incorporated and, on January 31, 1893 filed a similar suit in the Court of Private Land Claims, seeking the confirmation of its claim as successor to the Villa of Santa Fe to a four square league tract of land based on the alleged pre‑1680 grant or in the alternative, a four square league grant by operation of law for the use and benefit of its inhabitants and “such grantees and assignees of parts of the said lands as have derived or may hereafter acquire by due assignments allotments and titles in severalty to said parts respectively.”[9] The defendant demurred on the ground that this petition stated no cause of action, and also because it failed to disclose the fact that there were many adverse claimants under Spanish grants, who were necessary parties. Appearances were thereafter filed by parties claiming interests under seventeen of these adverse grants. Thereupon, an amended petition was filed by the city, which named as defendants not only the United States but also the parties who had filed appearances in the suit. The amended petition substantially reiterated the averments of the original petition as to the foundation and existence of the Villa of Santa Fe but omitted the allegation on the subject of an express grant. It also averred that within the boundaries of the grant there:
… are now living about seven thousand people and about fifteen hundred heads of families, nearly all of whom own, occupy and have improved lands which they claim to hold under the said grant to the Villa de Santa Fe, and there is erected thereupon buildings and improvements in public and private ownership, claiming under said grant to the value of several millions of dollars and that none of said claimants and occupants are in any sense adverse claimants to your petitioner.
And your petitioner further shows that there are claimed to be certain private land grants to individuals named as defendants in this proceedings, of tracts of land within the exterior lines of said four square leagues granted to your petitioner as aforesaid. But your petitioner avers that if any such exists, each and all of them are junior in date, subordinate, and subject to the said municipal grant to your petitioner’s predecessor as a town and villa, and whether the said private land grants are claimed adversely to your petitioner or not, your petitioner is not advised, but it states that all of said private land grants have been filed before this court for adjudication and have already been set for hearing in this court for the same date as this case, and that all of said claimants have subjected themselves to this court, with their alleged private land grants for its determination and decision, when the matter of their interests as against those of your petitioner can be full and finally determined.
The answer of the United States denied the alleged facts as to the foundation and organization of the Villa of Santa Fe denied that the plaintiff, a municipal corporation was the successor or entitled to assert the rights if any, of the Spanish Villa, and also denied that Santa Fe had received a grant or was entitled to claim four square leagues by operation of law. Continuing, the government averred that title to a large portion of the alleged grant was claimed under grants made to others; the validity of which claims was not, however, admitted. It was also averred by the government that the villa had never at any time during the Spanish and Mexican periods claimed or pretended to claim or assert title to or over any of the lands within the four square league tract except that portion which was actually granted to it in 1715. The government also called attention to the fact that other parts of the grant were in the control and possession of the United States as a military post known as Fort Marcy, as a public building known as the Federal Building, and as an establishment known as the Indian Industrial School.
The persons holding conflicting grants, who had been made defendants, also filed answers specially denying the making of a grant to the Villa or the Villa’s right to four square leagues by operation of law. They also specially denied that the heads of families, residents, or other persons who occupied lands within the Santa Fe League held those lands under any grant, either express or implied. In other words, these claims were set up as superior, outstanding titles. Since the plaintiff no longer claimed that an express grant had been actually made to it as a municipal corporation, the principal issue in the case was whether or not each new town formed by the Spanish government was entitled to four square leagues of land by operation of law.
The case came up for trial on April 21, 1894, at which time the plaintiff offered a large amount of documentary evidence and oral testimony tending to prove the existence of a Spanish town at Santa Fe from 1692 down to the present timer. In addition to citing Law 6, Title 5, Book 4 of the Recopilación de las Indias as authority for an implied grant of four square leagues, the plaintiff stated that its claim was analogous to the similar claims made by the Cities of San Francisco, California, and Brownsville, Texas, and which had been recognized by the United States Supreme Court.[10]
The government introduced numerous separate grants made by the Governor of New Mexico covering lands within the boundaries of the four‑square league tract claimed by the plaintiff for the purpose of showing that the Governor of New Mexico did not recognize, either as a matter of law or of fact, that the Villa had any title to or the right to dispose of any portion of the land within the four square leagues. In this connection, it pointed out that there was not a scintilla of evidence showing that the Villa had ever exercised control over or attempted to dispose of a single foot of property by virtue of its alleged ownership of the premises. The government also pointed out that there was evidence which definitely contradicted the plaintiff’s theory. This was the 1715 grant made to the Villa covering Cienega, which not only was located within the boundaries of the foursquare league tract, but was situated almost within the heart of the municipality. If the Villa was the owner of all of the property within four square leagues of the plaza, then the Villa’s petition for and subsequent grant of the Cienega would be entirely unnecessary.
The case was submitted to three judges of the court who constituted a quorum, on April 27, 1894. Upon the judgment of two of the judges, the grant was confirmed. Chief Justice Joseph R. Reed and Justice Thomas C. Fuller, in the majority opinion dated April 28, 1894, held that under Spanish law, the establishment of a pueblo operated as an appropriation of four square leagues of land for the benefit of said pueblo and its inhabitants and no express grant need be shown. The court pointed out that this doctrine had been recognized and affirmed by the supreme Court of the United States in the San Francisco and Brownsville cases.[11] Continuing, the court recognized that title to all unappropriated lands lying within the out boundaries of a pueblo grant remained in the sovereign and that the subsequent grants by the Governors of New Mexico covered a major portion of the four‑square league tract. This raised a very difficult question, for the Supreme Court had often held that the power of a governor in a Spanish province to make grants would be presumed from the mere fact of the exercise of such power. If such a presumption was accepted in this case, then each of the subsequent grants would have to be confirmed. However, the court noted that in each case where such a presumption had been applied, it was pursuant to the policy of the crown to foster the settlement of the unappropriated public domain. In this case, all the land had been appropriated for the benefit of the Villa and, while title to all unoccupied lands remained in the sovereign and while the governor could have appropriated it for other purposes, the policy was to reserve such land for the future expansion of the settlement, and, until actually occupied by new settlers under allotments made by the Ayuntamiento, it was to be utilized by the inhabitants of the villa as a commons. The court found that this policy had not been changed or abandoned during the continuance of the Spanish jurisdiction over New Mexico. Therefore, the subsequent grants were made in violation of a settled policy of the sovereign and for that reason, no presumption of a power in the officer who assumed to make grants could be indulged in just because he had assumed to exercise such power. As a result of this finding, each of the subsequent conflicting grants were rejected.[12]
Justice W. M. Murray wrote a strong dissenting opinion in the case. He pointed out that the plaintiff’s claim was based on Law 6, Title 5, Book 4 of the Recopilación las Indias and the apparent interpretation of this law by the Supreme Court as meaning that each new Spanish town was entitled to four square leagues of land unless it was given a larger express grant, He then proceeded to show that such was not the case. First he called attention to the fact that Law 6 did not grant each new town established by the government a grant by operation of law but that this law pertained solely to towns formed by contractors. He pointed out that the plaintiffs translation of the law was incorrect and that it should read as follows:
If the situation of the land be adopted to the founding of any town to be peopled by Spaniards, with a council of ordinary alcaldes and rigidoris; and, if there be persons who will contract for their settlement, the agreement shall be made upon the following conditions: That, within the prescribed time, it shall comprise at least thirty heads of families, each of whom to possess a house ten breeding cows, four steers or two steers and two young bullocks a breeding mare a breeding sow, twenty breeding ewes from Castille, and six hens and a cock; he shall morever, appoint a priest to administer the sacraments, who, the first time shall be of his choice, and afterwards, according to our royal patronage; he shall provide the church with ornaments and articles necessary for divine worship. and he shall give bonds to perform the same within said period of time; and if he fail in fulfilling his agreement, he will lose all that he may have built, worked or repaired, which shall be applied to our royal patrimony, and incur the forfeiture of 1,000 ounces of gold to our chamber (camera); and if he should fulfill his obligations, there shall be granted to him four square leagues of territory, either in a square or lengthwise, according to the quality of the land, in such a manner that, when located and surveyed, the four leagues shall be in a quadrangle and so that the boundaries of said territory be at least five leagues distant from any city town and village inhabited by Spaniards and previously settled and that it cause no prejudice to any Indian tribe, nor to any private individual.[13]
He further noted that the four square league tract so granted to the contract was, after setting aside adequate lands for the townsite and ejidos, to be allocated three‑fourths to the inhabitants and one‑fourth to the contractor. The Inhabitants’ share was then to be subdivided into lots and a lot given to each settler. Unallocated lots were to be reserved for the benefit of subsequent settlers. Since there was no evidence tending to show that the four square leagues were ever surveyed and set apart or that any allotments of land had ever been made among the inhabitants of Santa Fe by the town council, he noted that the law of Spain, in relation to the establishment of towns by the government prior to1789, left the question of the quantity of land to be granted wholly up to the discretion of the governor or viceroy. He stated, “Nothing whatever is to be found in the law in regard to any town or pueblo so established being entitled to four square leagues or any other quantity of land by operation of law”. Therefore, he concluded, if Santa Fe was established by the government as early as 1693, as contended by the plaintiff, there could be no grounds upon which the court could presume a grant to Santa Fe by operation of law to any specific quantity of land. He also pointed out that neither Brownsville nor San Francisco were established by the government prior to 1789. In conclusion, Murray held:
A decree should be ordered conferring to the city land granted to it by the governor of New Mexico, and the plaza, streets, alleys, and other property held by the corporation for public purposes and the petition should be dismissed as to all other claims. The court should examine the grants and evidence be filed in support of claims to land within the four square leagues which are submitted with this case; and if such grants are genuine, and the claimants have such an interest as entitles them to prosecute the suit, such grants should be confirmed.[14]
The government appealed the decision to the Supreme Court, which reversed the Court of Private Land Claims in all particulars. The Supreme Court held that Spanish law did not proprio vigore confer upon every Spanish villa or town a grant of four square leagues of land.[15] Since each of the conflicting grants had been rejected by the Court of Private Land Claims and none of their claimants had appealed this left the matter open to but one conclusion which was that as there was no valid and perfect grants within the Santa Fe League, title to all the property was vested in the United States. This decision caused the inhabitants of Santa Fe no little concern for they believed that their claims to the individual parcels of land they and their ancestors or predecessors had lived on and used for centuries were entitled to the protection of the Treaty of Guadalupe Hidalgo. Since Congress had exclusive jurisdiction over the disposition of the public domain, the inhabitants turned to that august body for relief. On April 91 1900, Congress passed an act which quitclaimed and released to the City of Santa Fe all of the lands embraced within the Santa Fe League to the City of Santa Fe, a municipal corporation, for all parks, streets, alleys, vacant unoccupied lands or other public places and to the city in trust for the benefit of all persons claiming title to their individual holdings of real estate within the Santa Fe League by actual possession or under color of title for a period of ten years. The act expressly excepted and reserved to the government all land and buildings located therein which were occupied and used by the United States and also excepted all lands covered by any private land grant which had previously been confirmed by the Court of Private Land Claims. The Act also made it the duty of the mayor and clerk of the City of Santa Fe:
. . . . to execute proper deeds of quitclaim to the persons entitled thereto under this Act for their respective holdings of real estate and such deeds when executed shall be taken in all courts and places as a relinquishment of any claim or title to the lands therein described on the part of the United States.[16]
This Act was, in effect, a grant de novo to the city and its lot holders. Numerous city deeds have been issued pursuant to this Act.
Attorneys in passing upon title to lands covered by a city deed, need not examine the title for any period prior to the last deed dated before March 16, 1889 if the city deed fairly describes the property”, which has been of record for at least ten years, and there is nothing of record subsequent to the last deed prior to March 16, 1889, indicating that someone other than the grantee named in the city deed had an adverse claim to the property a the time such city deed was issued.[17] Thus, for all practical purposes land titles in the second oldest city in the nation are of comparatively recent origin.
[1] Mauzy, “The Old Palace and the Pueblo Revolt of 1680” 68 El Palacio, 201‑214 (1961).
[2] The Cienega Grant, No. F-4 (Mss., Records of the S.G.N.M.).
[3] On November 17, 1838. Colonel Justiniani, the Commander of the Vera Cruz Squadron which had been sent to New Mexico to assist Acting Governor Manuel Armijo put down the Revolution of 1837‑1838 petitioned the Departmental Assembly of New Mexico, requesting that the squadron be paid for the months of September, October and November, in order that it might return to El Paso del Norte. Since the Treasury was empty, it was proposed that the money he raised by floating a loan to be secured by a mortgage on the Governor’s palace and the cienega “which is recognized as being owned by the municipality”. Ibid. While the testimonio pertaining to the Cienega Grant was filed in the Surveyor General’s office on February 30, 1855, a petition seeking the investigation and confirmation of the grant was never filed. Ibid.
[4] H.R. Exec. Doc, No 239. 43d Cong., 1st Sess., 2-4 (1874).
[5] The City of Santa Fe Grant. No. 88 (Mss., Records of the S.G.N.M.).
[6] Ibid.
[7] Villa of Santa Fe v. United States, No. 19 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] The City of Santa Fe was incorporated by the Legislature of the Territory of New Mexico on July 4, 1851, however the inhabitants of Santa Fe, who were unaccustomed to being taxed for the maintenance of a municipal government found the city’s charter to be distasteful and caused the incorporation act to be repealed in January 1852. Thereafter the City had no formal government until January 13, 1876, when the twenty‑third legislature of the territory of New Mexico created the Boards of County Commissioners extensive powers over the control of county affairs. The city was incorporated in the spring of 1891 Twitchell, Old Santa Fe, 416 (1963).
[9] City of Santa Fe v United States. No. 80 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] San Francisco v. LeRoy, 138 US. 656 (1891), and Brownsville v, Cavazos, 100 U.S. 138 (1879).
[11] Ibid.
[12] 2 Journal 136‑138 (Mss., Records of the Ct. Pvt. L. Cl.). The owners of only four of the conflicting grants the Arroyo de los Chamizos, Roque Lovato, Juan Cayitano Lovato, and Antonio Dominguez Grants ‑ attempted to litigate their titles during the trial of the Santa Fe Grant. On April 28, 1894, the same day that the Court of Private Land Claims issued the decree confirming the Santa Fe Grant, it entered written decrees rejecting the Arroyo de los Chamizos, Roque Lobato and Juan Cayitano Lovato Grants. A nunc pro tunc decree was later entered rejecting the Antonio Dominguez Grant. There was considerable doubt as to the validity of the recital in the decree confirming the Santa Fe Grant which rejected all of the conflicting grants. Therefore, the United States Attorney, in his report on the Santa Fe case, stated he had delayed his report:
… expecting a full bench before whom one of the conflicting grants would likely be tried thereby raising the question of the conflict of the Santa Fe Grant and get an additional opinion upon the same which might throw some light if not induce the Court to change its opinion.
The Court refused to set any of the cases until after the Supreme Court had passed on the appeal. Thereafter, the Court of Private Land Claims, notwithstanding the reversal of its decision of the Santa Fe case by the Supreme Court, refused to reverse its opinion concerning the validity of each of the conflicting grants. The validity of this opinion was never challenged for as each of the cases involving the grants which conflicted with the Santa Fe League came up for trial the plaintiffs either failed to appear or announced that they no longer wished to prosecute their claim.
[13] City of Santa Fe v. United States, No. 80 (Mss., Records of the Ct. Pvt. L. Cl.).
[14] City of Santa Fe v United States. No. 80 (Mss., Records of the Ct. Pvt. L. Cl.) and Twitchell, Spanish Archives of New Mexico, 216-225 (1914).
[15] United States v. Santa Fe, 165 U.S. 675 (1879).
[16] An Act to Settle the Title to Real Estate in City of Santa Fe, New Mexico, Chap 182, 31 Stat 72 (1901).
[17] Title Standards of the Santa Fe Bar, No. 20 (1945).
Santa Fe Grant; J.J. Bowden research on land grants