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Sebastian de Vargas Grant

by J. J. Bowden

Sometime prior to 1710, Captain Sebastian de Vargas[1] received a grant for military services covering a tract of 40,000 acres of land described as being bounded:

On the north, by the bluffs of the Chamisos Arroyo; on the east, by Cerros Negros; on the south, by the old road running from the Pueblo of Pecos to Serrillos; and on the west, the lands of Jose Reano.

In 1742, Vargas sold the portion of the grant lying west of the Galisteo to Santa Fe road to Captain Tomas de Sena. Later Vargas sold the eastern portion of the grant to Juan de Uriosti. Uriosti in turn sold his interest in the grant to Jose Maria Montoya on September 17, 1782, Montoya sold the eastern portion of the grant to Jose Miguel Griego and five other Persons on January 28, 1808. The heirs of Tomas de Sena and Montoya’s six assignees were in possession of the grant when the United States acquired New Mexico.[2]

Cecilio Griego and forty‑nine others petitioned Surveyor General Henry M. Atkinson on June 12, 1884 for the confirmation of the Sebastian de Vargas Grant, which they described as being bounded:

On the north, by the old Pecos Road; on the east, by the Cerros Negros; on the south, by the Pecos to Serrillos road; and on the west, by the middle road from Santa Fe to Galisteo.

No mention was made of the western portion of the grant. In support of their claim, the petitioners filed a copy of the September 17, 1782 and January 28, 1808 deeds, together with a large amount of oral testimony tending to show that Montoya’s grantees and those claiming under them had used and occupied the tract east of the Galisteo road for a period of fifty or sixty years. Several witnesses had stated that ex-Governor Donaciano Vigil had told them that he had seen the grant papers in the archives, and since it was well known that Governor William A. Pile had sold part of the archives for scrap paper in 1870, it reasonably could be presumed that the grant papers were amongst these papers. Continuing, he contended that the government’s negligence should not preju­dice the claim. Atkinson did not have a chance to pass upon the grant prior to his death. Clarence Pullen succeeded Atkinson on July 29, 1884, four days after Atkinson had closed his investigation. To assist Pullen in reaching a decision on the merits of this shaky claim, the applicant’s attorney filed a brief in which he asserted that it was “well settled that possession of land, for a long period of time will raise a presumption of a grant, which will be enforced against the government”, notwithstanding the fact that no muniments of title were presented evidencing a grant to Vargas or that he had sold the lands in question to Montoya. The brief also called attention to the fact that grant papers in the Canada del Alamos Grant called for the grant as its northern boundary, and that this reference raised a presumption in favor of the claim. Pullen handed down an opinion on the claim on October 17, 1884. In his opinion, Pullen held:

The strength of the claimant’s case lies in the maintenance of the two assumptions of the brief just quoted. There is no record evidence or reference to such a grant in the old Spanish or Mexican files in this office, save that in file no 89 of the Canada de las Alamos grant, an allusion is made to the lands of Sebastian de Vargas in a paper dated September 23, 1875, said “De Vargas” land being evidently understood therein to be in somewhat the same locality as the tract now claimed as a grant by the petitioners. . . . “To maintain a title by secondary evidence” (says the court in the United States v, Castro et al., 24 Howard 350), “the claimants must show that the grant was obtained and made in the manner the law required at some former time, and that it was recorded in the proper public office, to which it may be added that such was undoubtedly, the Mexican Law.,” … Now, as there is no record of the title of the alleged grant on file in this office, the question is to be determined whether the evidence offered is sufficient to support a title. The testimonio is unsatisfactory and contradictory. There is a variation as to how the claimants came into possession of the land. The testimony shows that a general reputation is that the alleged grant was originally made to Sebastian de Vargas but it is not shown that he ever occupied it, and deeded it to Jose Maria Montoya. The testimony shows that the land had been mainly occupied during the summer in the cropping season by people who lived in Santa Fe the rest of the year. Only one witness testified to anyone living all the year on the land. Another witness testifies that many people pastured their herds and cut wood on the land without permission. Under the law applicable to the ruling point of their petition and in light of the evidence offered, I do not consider the claimants to have presented a prima facie case, and I hereby disapprove the petitioners’ claim of a grant.[3]

Since Congress had taken no action on the claim, it came up for review by Surveyor General George W. Julian under his general instructions from the Commissioner of the General Land office, dated December 11, 1885. In a unique decision dated July 7, 1886, Julian pointed out that the first instructions issued by the Department of Interior for the guidance of the Surveyor General’s office in investigating private land claims stated:

It is obligatory on the Government of the United States to deal with the private land titles and the pueblos precisely as Mexico would have done had the sovereignty not changed. We are bound to recognize all titles as she would have done‑‑to go that far and no further.

Continuing, he noted that the claim was situated near the capital and that Spain was less strict in the preservation of records than Mexico. He found that the Spanish official undoubtedly would not have permitted Vargas and his successors to occupy lands so close to Santa Fe, sanction the conveyance of the tract by Montoya and mention the grant in subsequent grants if title to the grant was not valid. Therefore, Julian concluded that the legal representatives of grantees of Montoya had an equitable claim to the lands they were actually occupying.[4]  This is indeed an unusual decision, for as a rule Julian was extremely zealous in pointing out the most minute defects in title which had been recommended for confirmation by his predecessors. Could it be that nothing they had done was right and he was determined to “overturn” their work even at the expense of recommending the confirmation of a claim which previously had been recommended for rejection? With all the confusion and conflicting opinions concerning the private land claims of the southwest, it is hardly surprising to find that session after session of Congress passed without any action having been taken on this grant.

The owners were unable to motivate Congress, and there was no other authority to which they could apply prior to the creation of the Court of Private Land Claims. However, the owners of the Sebastian de Vargas Grant never gave up hope of securing its recognition, and it was one of the first claims presented to that court. On March 1, 1892, Louise J. Purdy and a host of other persons claiming interests in either the east or west portions of the grant filed suit in that court against the United States for its recognition.[5] The case came up for trial on December 12, 1892, at which time the plaintiffs introduced a large amount of documentary evidence to establish, by recitals contained in such documents, the existence of the Sebastian de Vargas Grant. Some of these documents formed a part of the archives, and there was no question concerning their authenticity. Some oral testimony was also given by witnesses friendly to the plaintiff, but this testimony was of such a character and so indefinite as to have little influence upon the court. The government, in turn, attacked the validity of the claim on the ground that the original papers had not been introduced and there was no evidence in the archives that such a grant had ever been made and that references to the grant in a number of subsequent documents were not sufficient to establish the existence of a valid grant or its boundaries.

On August 24, 1893, the court announced a decision in which it considered the two tracts separately. In connection with the east tract it found that the recitals in the petition for the revalidation of the Juan de Leon Brito Grant which adjoined the Sebastian de Vargas Grant on the north and the call in the Canada de los Alamos Grant to adjoin the Sebastian de Vargas Grant on the south tended to fix its boundaries. It further found that the call for adjoinder with the lands of Montoya in the Act of Possession of the Brito revalidation grant also tended to prove that the eastern portion of the grant had been conveyed to Jose Marie Montoya and his assigns. Based on these findings, the court held that by making these subsequent grants, the Spanish officials knew of the grant and had recognized it as a valid grant extending from the bluffs of the Chamisos Arroyos on the north to the Pecos‑Serrillos road on the south. As no other grant conflicted with it and that since time immemorial the east tract had been known in the area as the Sebastian de Vargas Grant, a majority of the court regarded this as sufficient evidence to warrant a finding that a grant had been made to Vargas, that it covered at least all of the lands designated as the east tract, and that title thereto was vested in the heirs and legal representatives of Montoya’s six grantees. In reaching this conclusion, the court stated that it relied heavily upon the fact that the Alcalde was the principal judicial officer and general factotum of the community, and, as such, was well acquainted with the people and their affairs. He performed an official function in reference to all grants made by the government in his jurisdiction. He had an official connection with all transfers of land made between individuals in his jurisdiction. In performing his official duties by giving possession of granted land, he was bound to ascertain and summon all owners of adjoining land, These were not matters hidden under a bushel basket. All landowners and the circumstances under which they acquired their lands were well known in the community and especially by the Alcalde, whose duty it was to deal with such matters, Therefore, the facts, recited in the title papers in connection with the east tract and in which the Alcalde played an important role, raised a strong presumption which the court could not ignored.

In connection with the west tract, a majority of the court noted that there was no documentary evidence from the archive conclusively showing that the Sebastian de Vargas Grant covered any land lying west of the Santa Fe‑Galisteo Road, While the plaintiffs had introduced the grant papers to the Antonio Armijo Grant, which recited that it adjoined the lands of Tomas de Serna, this did not indicate that the Sebastian de Vargas Grant covered such lands. The plaintiffs had tried to prove that the western tracts had been conveyed to Serna by Vargas by virtue of a recital in a deed executed by Serna’s grandson, Domingo Fernandez, to Simon Delgado dated March 10, 1853, covering a small tract of land. This deed stated that such tract was within the boundaries of the Sebastian de Vargas Grant. In answer to this contention, the decision held there was no rule of law confirming a particular sanctity or probative force to the recitals in a deed which happened to be more than thirty years old. Such recitals are simply the statements off the party who made the deed and are of no more weight by reason of being in a deed than if given in oral testimony. The Supreme Court in Hunnicutt v. Peyton, 102 US. 333 (1880), laid down the rule that declarations of particular facts as distinguished from reputation, made by deceased persons are not admissible as evidence unless it is shown such person had personal knowledge of those facts. Since the deed was made more than a century after the alleged date of the grant, Fernandez could not possibly have had personal knowledge of the facts contained therein. Therefore the court held that the plaintiffs had not adequately proven their claim to the western tract and the grant, insofar as all land lying west of the Santa Fe‑Galisteo Roads was rejected.

The decision in this case is interesting for the court was highly divided in its opinion. Justices Thomas C. Fuller and Wilbur F. Stone were for the confirmation of the entire grant. Chief Justice Joseph R. Reed and Justice William M. Murray recommended the rejection of the entire claim. Justice Henry C. Stuss voted to confirm the east tract but reject the west tract Therefore his opinion became the majority opinion.[6] The plaintiffs appealed the decision to the United States Supreme Court, but the appeal was dismissed pursuant to the Rule 10 on October 27, 1887 as a result of the appellant’s failure file a printed transcript of the record.[7]

Once the decision became final, the grant was officially surveyed by Deputy Surveyor George H. Pradt for 13.434,38 acres. This survey showed that nine persons had filed and received patents on homestead entries covering 701.01 acres located within the boundaries of the grant as confirmed by the court. A patent based on the Pradt survey was issued to the owners of the east tract on September 27, 1900.

Meanwhile, the owners of the east tract filed suit n the Court of Private Land Claims on April 24, 1900. seeking a money judgment against the United States under Section 14 of the Act of March 3, 1891[8] for $876.26 or $1.25 per acre which they alleged was the market value of the lands covered by the homestead entries. The government, in its answers contended that the plaintiffs had waived their rights since they had not raised the question in the initial suit and had not made the homesteaders parties defendants in that action. The case was submitted to the court on this issue on April 3 1902. On the same day the court announced its decision disallowing the claim under the doctrine of the Supreme Courts decision in United States v. Martinez 184 U.S. 441 (1891) which held that the plaintiff’s failure to join the patentees of the homestead entries as parties defendants in the suit for the confirmation of the grant would defeat their right to recover a money judgment against the United States under Section 14 of the Court of Private Land Claims Act for the value of the lands disposed of within the grant by the government prior to the filing of their original petition.[9]

[1] Sebastian de Vargas was born in Guadalajara, Mexico in 1674, and came to New Mexico with the Reconquest. It does not appear that he was related to Reconquistador. Chavez, Origins of New Mexico Families 306 (1954).

[2] Purdy v. United States, No. 6 (Mss., Records of the Ct. Pvt. L. Cl.).

[3] H. R. Exec. Doc. No. 16, 48th Cong. 2d Sess., 1‑15 (1884).

[4] S. Exec, Doc. No, 17, 50th Cong., 1st Sess, 2‑3 (1887).

[5] Purdy v United States, No 6. (Mss., Records of Ct. Pvt. L., Cl.).

[6] 1 Journal 208 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] Purdy V. United States, 18 S. Ct 945 42 L Ed 1207 (Mem.) (1897).

[8] Court of Private Land Claims Act, Chap 539 Sec 14 26 Stat 854 (1891).

[9] 4. Journal 293 (Mss., Records of the Ct. Pvt. L. Cl.).