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Santa Rosa de Cubero Grant

 by J. J. Bowden

Bartolome Fernandez and Jose Quintana, both residents of Santa Fe, appeared before Governor Manuel Portillo Urrisola in 1761 or 1762 and requested a grant covering a tract of surplus land situated west of the river and lying between the Pueblos of Santo Domingo and San Felipe. To assist him in reaching the proper decision Urrisola ordered Lieutenant Nerio Antonio Montoya to examine the requested tract, advise the Indians of the petition, and report his findings. Montoya’s investigation showed that the tract was vacant, its settlement would be beneficial to the general welfare and that the Indians had no objections to the issuance of the concession. Based on these findings, Urrisola granted the land to Fernandez and Quintana and directed Montoya to deliver in royal possession of the premises to them. Pursuant to this decree, Montoya put the two grantees in possession of the land observing all the requirements which it was customary to follow in such cases and again explained the proceedings to the Indians to see if they had any complaints. The Indians of both pueblos unanimously replied that the grant did not prejudice any of their rights. Fernandez promptly moved to the grant and commenced using and cultivating the land, but Quintana was killed by the Navajos before he could settle upon the property. Approx­imately twelve years after the issuance of the grant, Governor Pedro Fermin de Mendinueta annulled the grant on the ground it was prejudicial to the Indians.[1] Notwithstanding the recall of the grant, it appears that Fernandez and his descendants were permitted to continue to occupy the premises.

 On July 6, 1815, Fernandez’s sons, Domingo and Santiago, and sons-in-law Juan de Abrego, Santiago Rodriguez and Buenaventura Esquival, petitioned Governor Alberto Maynez for a new grant covering the same land. Maynez, on the following day, ordered the Alcalde of Alameda, Jose Gutierrez, to act upon the petition bearing in mind that the grant thereof, if it should be convenient to make it, it should be made without prejudice to the measurements of the pueblos of Santo Domingo and San Felipe, or other third person. Gutierrez was also directed to report to the governor “before deciding upon the grant.” In compliance with such order, Gutierrez went to the grant and, after assembling the representatives of the two pueblos and requesting to see their title papers, found that they had “nothing more than a certificate without date or the name of the person who wrote it.” He also noted that the Indians had no objection to the granting of the land to the petitioners, “other than their desire to appropriate it for themselves.” Therefore, he proceeded to survey the patrimonial leagues of the pueblos. The inhabitants of San Felipe assisted him but those of Santo Domino refused to permit him to survey their land saying that they were tired of having their land measured. Notwithstanding Gutierrez’s repeated efforts to get them to comply with the governor’s orders and his explanation that a survey would in no way injure them, the Santo Domingans continued to deny him access to their land. Therefore, he reported the impasse to the governor and asked for authority to proceed with the delivery of royal possession of the grant to the four grantees. On August 29, 1815, Maynez approved Gutierrez’s actions and directed him to proceed, provided the rights of third parties would not be prejudiced. Two days later, Gutierrez returned to Santo Domingo and showed its representatives the governor’s latest decree. Whereupon, they consented to the surveying of their lands in order to locate the common border between the Santa Rosa de Cubero and Pueblo of Santo Domingo Grants. Following the completion of the Survey, Gutierrez fixed the boundaries of the Santa Rose de Cubero Grant at the following natural objects:

On the north, the leagues of the Pueblo of Santo Domingo; On the east, the Rio Grande; on the south, the leagues of the Pueblo of San Felipe; and on the west the Mesa de las Casitas, which they also call Cubero and Apaches.

Next, he performed the customary ceremony necessary to deliver royal possession to the grantees. Maynez approved the proceedings on September 1, 1815.[2]

On March 3, 1893, Valentín Cabeza de Baca and five other persons filed suit[3] in the Court of Private Land Claims seeking the confirmation of the grant. The government, on November 10, 1896 pointed out that the grant conflicted with the Pueblo of San Felipe and Santo Domingo Grants, which previously had been confirmed and patented, and requested that such pueblos be made parties defendant. The court granted[4] the government’s motion and the plaintiffs amended their petition in order to join the pueblos as parties defendant and stated, while the grants to the two pueblos, as patented, adjoined one another, they had been improperly surveyed so as to include all of their property. They asked the court to extinguish the pueblos’ title to the lands involved in the conflict, or, in the alternative, to award plaintiffs an amount equal to the fair value of any portion of their grant which was excepted from the confirmation of their grant. The government filed an answer in the case on February 14, 1898 in which it raised two special defenses. First, it asserted that since the grant was wholly within the two pueblo grants and they previously had been confirmed by Congress, the government had no title to pass to the plaintiffs, and, therefore, the court had no jurisdiction over the premises. Second, it alleged the plaintiffs had no title to the south half of the grant.

The case came up for hearing on June 21, 1898, at which time the plaintiffs offered in evidence a portion of Archive No. 281 to establish the grant to Domingo Fernandez and his brother and three brothers-in-law. Documentary evidence was also introduced connecting the plaintiffs with the five grantees. Oral testimony on the subject of the location of boundaries and possession was also adduced. It showed that the western boundary of the grant was located about nine miles west of the little settlement of Santa Rosa de Cubero and that the grant had been occupied continuously since about 1762. The government, in turn, introduced the balance of Archive No. 281 which showed that in 1816 Jose Alejandro Quintana had instituted a suit seeking to secure the recognition of the claim for a half interest in the grant. In support of his claim he filed a birth certificate which showed that he was the legitimate son of Jose Quintana. He alleged that his father had been killed shortly after the issuance of the original grant and as a minor he was excused from settling on the premises. He also pointed out that Gutierrez had questioned Domingo Fernandez and his associates about Jose Quintana and they had advised him he had died without descendants and as a result of this statement he was not named as a beneficiary to the relief granted in the 1815 proceedings. In a decision dated June 14, 1820, Governor Facundo Melgares held that José Alejandro Quintana was the owner of the south half of the grant. [5]  It. also showed that Quintana, in the meantime, had sold his interest in the grant to the inhabitants of the Pueblo of San Felipe for five hundred ten dollars. Therefore, it contended that, if confirmed at all, the claim should be limited to the north half of the tract described in the plaintiffs’ petition. It also contended that the west boundary of the tract was the crest of the mesa just west of the Town of Santa Rosa de Cubero. Next, it argued that Section 13(1) of the Act of March 3, 1891,[6] deprived the courts of jurisdiction in the case since Congress had previously confirmed all of the land to either the Pueblo of San Felipe or the Pueblo of Santo Domingo. Just before the case was submitted, the plaintiffs amended their petition and prayed for confirmation of their title under the original grant instead of the 1815 proceeding.

Upon this state of the pleadings and proof, the Court on July 5, 1898, announced its majority decision[7] confirming the grant and fixing its western boundary at the point contended for by the plaintiffs. However, Chief Justice Joseph R. Reed and Justice W. M. Murray, in a minority opinion, held that its western boundary “should go no farther than the west boundary of league of San Felipe, which is about six miles west of the Rio Grande.” On July 6, 1898, the government filed a motion for rehearing seeking a modification of the majority opinion in order to fix the west boundary at the crest of the mesa next west of the settlement of Santa Rosa de Cubero. The court overruled the motion on December 12, 1898.[8] Since the grant, as confirmed, obviously was not more than half a mile from north to south and, at most, nine miles wide and was practically worthless, except for that small portion situated in the Rio Grande valley, the government’s attorney did not feel an appeal was justified.[9] Once the decision became final, Deputy Surveyor George H. Pradt was awarded a contract to survey the grant. His survey, which was made in February, 1900, showed that the grant contained 1,945.496 acres. A patent for that amount of land was issued to the heirs and legal representatives of Bartolome Fernandez and Jose Quintana on May 7, 1914.[10]

The Pueblo Land Board considered the grant in con­nection with its investigation of non‑Indian claims located within the boundaries of the Pueblo of San Felipe Grant. It held that, notwithstanding the confirmation of the grant, the Indians had a valid claim to the 1,402.35 acres located within the Pueblo of San Felipe Grant.[11] Based on this decision, the United States as guardian of the Indians of the Pueblo of San Felipe filed suit[12] in the District Court of New Mexico on July 7, 1928, seeking to quiet the Indians’ title to the land. After hearing the evidence the Court reversed the Pueblo Land Board’s decision and entered a decree in favor of the owners of the Santa Rosa de Cubero Grant. The government appealed[13] to the Tenth Circuit Court of Appeals, which affirmed the decision on the ground the Santa Rosa de Cubero Grant had not been superimposed upon the pueblo grants but covered by a tract of vacant land lying between the two pueblos. It also found that the evidence pertaining to Quintana’s alleged conveyance of a half of the grant to the Pueblo of San Felipe was “too shadowy to serve as a muniment of title.”

Despite the recommendations of the Indian agent, the Indians of San Felipe have repeatedly refused to attempt to purchase the portion of the grant within their boundaries reasoning that, notwithstanding the decisions, the land is theirs. The fact that the land is unfenced and they may cross the tract at will has lulled them into a false sense of security.

[1] Archive No. 281 (Mss., Records of the A.N.M.).

[2] Ibid.

[3] Baca v. United States, No. 267 (Mss., Records of the Ct. Pvt. L. Cl.).

[4] 3 Journal 119 (Mss., Records of the Ct. Pvt. L. Cl,).

[5] Archive No. 281 (Mss., Records of the A.N.M.).

[6] Court of Private Land Claims Act, Chap. 539, Sec. 13(1) 26 Stat. 854 (1891).

[7] The Santa Rosa de Cubero Grant, No. 267 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] 4 Journal 68 (Mss., Records of the Ct. Pvt. L. Cl.).

[9] Report of the United States Attorney dated March 1, 1898, in the Case of Baca v United States (Mss., Records of the General Services Administration National Archives, Washington, D.C.), Record Group 60, Year File 9865‑92.

[10] The Santa Rosa de Cubero Grant, No. C.D. 267 (Mss., Records of the S.G.N.M.).

[11] The Pueblo of San Felipe Grant (Mss., Records of the Pueblo Land Board General Services Administration, National Archives, Washington, D.C.).

[12] United States v. Algodones Land Co., No. 1870 (Mss., Records of the United States District Clerk’s Office, Albuquerque, New Mexico).

[13] United States v. Algodones Land Co., 52 F. 2d 359 (10th Cir., 1931