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The Arroyo Hondo Grant

by J. J. Bowden

Pursuant to the Proclamation of February 28, 1813[1] which provided any citizen in want of farming land could settle upon the public domain, Nerio Sisneros and “various associates”, petitioned the Senior Alcalde of Taos, Jose Miguel Tafoya on March 27, 1815, asking for a tract of land located on the Arroyo Hondo in order to form a new settlement. The petition recited that the granting of the requested lands would:

.... not injure anyone, as it is distant from the league of the Indians, and is suitable for the formation of a town, as the administration is near, and pasture, water, firewood, and timber abundant.

Tafoya referred the matter to Governor Alberto Maynes for his further action, with a report that the requested lands would not be detrimental to the rights of any third party. On April 2, 1815, Maynes granted the request and instructed Tafoya to distribute farming and building lots of the customary size among the petitioners, subject to the conditions that each lot was to be no larger than the recipient could cultivate, the farm lots were to be fenced in order to protect growing crops from damage by stray livestock, and the commons were to be reserved as a public pasturage for the benefit of all inhabitants of the new settlement. In response to these instructions, Pedro Martin, Deputy Alcalde of the Pueblo of Taos, proceeded to the grant on April 10, 1815 and surveyed the grant which was described as being bounded:

On the north, by the landmark of Pablo Cordova; on the east, by a ridge of mountains, on the south, by the mouth of the Arroyo Hondo and the landmark of Pablo Lucero; and on the west, by Arroyo Hondo Hill.

After the survey of the exterior boundaries of the grant had been completed, Martin proceeded to designate and distribute individual farm and building tracts, ranging in width from 40 to 300 varas, to the forty-four persons who had agreed to settle upon the grant. Martin then placed the grantees in possession of the grant and informed them that they were to observe and comply with the following conditions:

That said tract has to be in common not only among themselves but also among all others who may join them in the future; that with respect to the danger at the place, they shall have to keep themselves equipped with firearms and lances, with which they shall pass review at the beginning or at any time deemed proper by the Alcalde in charge, it being understood that all arms they may have shall be firearms, with the penalty that all who do not comply shall be ordered out of town; that the public square they may make be according as proposed in their petition, and to avoid damages they shall fence (their lands), as required by the governor in his decree.[2]

The grantees promptly occupied and commenced cultivating their individual tracts. A community irrigation system was constructed and the individual tracts fenced with branches and trees to protect the crops from the animals. Homes were built around the plaza and soon a chapel was completed. A second or “lower town” was later established on the grant east of the original village. By 1887 there were approximately three hundred persons living on seventy-three separate tracts located within the boundaries of the grant. A few of the claimants of these tracts were heirs of the original grantees; however, a majority claimed their interests by virtue of deeds from the original grantees or their heirs.[3]

A portion of the grant papers were filed in the Sur­veyor General’s office on June 17, 1861 and the balance on July 21, 1881.[4] However, for some unexplained reason, the claimants did not petition the Surveyor General’s office seeking the confirmation of the grant until December 9, 1887. A hearing on the claim was held on the first and second of March, 1888, at which the petitioners offered oral testimony in support of their claims. Surveyor General George W. Julian, in a report[5] to Congress dated March 31, 1888, recommended the confirmation of the Arroyo Hondo Grant. Congress failed to act upon the claim prior to the creation of the Court of Private Land Claims.

Julian A. Martinez, for himself and sixty‑nine other lineal descendants or assigns of the original grantees, sued[6] the United States on February 3, 1891 in the Court of Private Land Claims in an effort to secure the recognition of the Arroyo Hondo Grant as a community grant. He estimated that the grant contained 23,040 acres together with valuable water rights mentioned in the “second” act of possession. When the case came up for trial on April 5, 1892, the Government objected to the introduction of an unauthenticated typewritten copy of the grant papers. The court sustained the Government’s objection but gave the plaintiff until the following term of court in order to produce further evidence to sustain the grant. A certified copy of the “second” Act of Possession was obtained from the Surveyor General’s Office and introduced at the trial on August 27, 1892. On December 17, 1892 the court found that the Act of Possession supported by the long, continuous and peaceful possession of the lands gave the plaintiffs “such an equitable right as the United States ought to recognize”. Therefore, it held[7] that the plaintiffs were entitled to the relief they sought and confirmed the grant. The Government announced that it would appeal the decision but none was perfected.

After the appeal period had expired, a contract was awarded to Deputy Surveyor Steward Coleman for the surveying of the grant. Coleman surveyed the premises in the summer of 1896 and his work showed the grant as containing 30,674.22 acres. On January 26, 1898 the Government filed a motion seeking to vacate the Decree of December 17, 1892 and protesting the approval of Coleman’s survey. It pointed out that the Act of Possession called for the eastern boundary of the grant to be located at “La Chuchella del Cerro. It argued that a literal translation of this call is the “ridge of the hill” instead of the “ridge of the mountain” as contained in the translation relied upon by the court in reaching its decision. Therefore, it requested the court to amend the decree in order to fix the east line of the grant along the ridge of the hill or about eight miles further west than the line surveyed by Coleman. The Government filed a second motion on the same date asking the court to set the decree aside on the grounds that the court had no jurisdiction to confirm the grant except to the individual farm tracts allotted to the forty-four grantees on April 10, 1815 and described in the Act of Possession. By decision[8] dated February 1, 1898 a majority of the court recognized that in the Sandoval Case[9] the Supreme Court appeared to hold that title to all unallocated lands within the out boundaries of a community grant were reserved by the sovereign and the Court of Private Land Claims did not have authority to confirm any portion of such a grant other than the allocated lands. However, the court contended that the doctrine of the Sandoval Case had no bearing upon the question and held that it did have jurisdiction over all the lands within the Arroyo Hondo Grant. Since its decision had been issued prior to that of the Supreme Court in the Sandoval Case, it had merely made an error in interpreting the Spanish Law, and thus, overruled the Government’s motion on the grounds that they could not set aside in a collateral attack. However, the court rejected the Coleman Survey on the grounds that the Government’s protest to the location of the east boundary was valid and had come up in the “regular course of procedure”.

The decision fixed the east boundary as a line running north from Station 29 on the south boundary across the mouth of the Canon of the Arroyo Hondo to Station 19 on the north boundary. Martinez appealed this decision to the United States Supreme Court, but the appeal was dismissed by the court pursuant to Rule 10 on January 17, 1899.[10]

Deputy Surveyor Coleman surveyed the new east line in July, 1899. The corrected survey reduced the area of the grant to 20,000.38 acres. The grant was finally patented on April 9, 1908.[11]

[1] The petitioners were in error as to this data and undoubtedly were applying for the grant under Section 15 of the Decree of January 4, 1813, which provided for the gratuitous granting of vacant agricultural land to the landless inhabitants of each town. Reynolds. Spanish and Mexican Land Laws 86 (1895).

[2] S. Exec. Doc. No. 126, 50th Cong., 2d Sess., 8 (1889).

[3] Ibid., 10‑12.

[4] The first of these papers consists of a certified copy of a certified copy of the testimonio of the grant (petition, grant decree, and act of possession). The certificate on the copy was signed by Juan Antonio Lovato on March 19, 1833 but did not reflect his authority or capacity, He states that he made the copy from a “like copy” which was taken from its original by Alcalde Juan de Dios Pena under date of May 12, 1820, The purpose for making the copy was to perpetuate the 1820 copy on account of its “worn out condition”. The copy of the copy of the testimonio did not contain an adequate legal description of the lands covered by the grant. Therefore, the claimants filed a certified copy of another “Act of Possession” by Alcalde Martin which was also dated April 10, 1815. This instrument contained the above description of the grant and was certified by Juan Antonio Lovato and Jose Manuel Romero, Corporation Secretary, on July 12, 1823. This certificate stated that the copy “agrees faithfully and legally with its original” and was made pursuant to a petition by Ignacio Gonzales, attorney for the inhabitants of Arroyo Hondo, on March 10, 1823. In the certificate Lovato “declared that the legitimate boundaries” of the grant were:

On the north, the hill which lies on the side towards the San Cristobal River; on the east, the upper little canon of the river; on the south, the brow of the hill and boundary of the settlers of Arroyo Seco; and on the west, the Rio Grande.

He also certified that the settlement of Arroyo Hondo had a full and absolute right to run water from “its fountain head”. The settlers of Arroyo Seco were instructed not to use the acequia which they had constructed to the Arroyo Hondo since the waters of that river belong to (a) the settlers of the town of Arroyo Hondo whose fields abutted thereon, (b) those below by right of priority, and (c) those above by order of Governor Jose Antonio Vizcarra subject, however, that in years of drought sufficient water was to be permitted to flow down the river for the irrigation of the fields of the lower settlers, who had a priority thereto. Ibid., 9‑10.

[5] The Arroyo Hondo Grant No. 159 (Mss., Records of the S.G.N.M.). On June 7, 1861, Jesus Maria Lucero filed the testimonio for a tract of land known as the Talaya Grant in the Surveyor General’s office. This instrument consists of a petition dated August 6, 1825, by Juan Miguel Talaya and seven associates to the Alcalde and Ayuntamiento of Taos seeking a grant of vacant land for agricultural and grazing purposes. The tract was described as being adjacent to the “boundary of the Town of Arroyo Hondo and on the other side to the Aneo Torcido”. In response to their request and pursuant to the directions of the Ayuntamiento, Alcalde Servino Martinez on August 20, 1825, “granted by appointment” individual tracts of 128 varas each to the eight petitioners. Fifty varas were also set aside to the Alcalde for his services. The grant was made “without prejudice to the first settlers of Arroyo Hondo, who depended on its waters”. These proceedings undoubtedly are merely allotments under the Arroyo Hondo Grant, Therefore, the Surveyor General never acted on the claim. The Talaya Grant No, F‑86 (Mss., Records of S.G.N.M.).

[6] Martinez v. United States, No, 5 (Mss., Records of the Ct. Pvt. L. Cl.). Juan N. Martinez filed a suit on March 2, 1893 seeking the confirmation of  “1,000 varas” on both sides of the Arroyo Hondo which his grandfather, Jose Ignacio Martin had been given by order of Governor Jose Antonio Vizcarra Martin was placed in possession of an approximately 500‑acre tract on March 21, 1823 by the Alcalde of Taos, Juan Antonio Lovato. In support of his claim, the plaintiff filed the testimonio of the Act of Possession. Martinez v. United States, No. 174 (Mss., Records of  Ct. Pvt. L. Cl.). A similar suit was instituted on the same day by Juan Antonio Valdez. This claim was also based on the testimonio of an Act of Possession. This instrument was dated July 24, 1823 and showed that Alcalde Lovato had placed Felipe Medina in possession of an 180‑vara tract (approximately 300‑acres) lying east of the Martin tract. Valdez v. United States, No. 175 (Mss., Records Ct. Pvt. L. Cl.). A third suit was filed at the same time by Manuel Espinosa for the confirmation of his claim to an estimated 300‑acre tract on the Arroyo Hondo which was known as the Manuel Fernandez Grant, This claim was based on the testimonio of an Act of Possession dated December 20, 1823 wherein Alcalde Lovato placed Fernandez in possession of that tract. Espinosa v. United States, No. 176 (Mss., Records of the Ct. Pvt. L. Cl.). Each of these alleged grants was undoubtedly only the allotment of a small individual tract to a new settler who had joined the colony of Arroyo Hondo. Thus, as each of these three cases came up for trial on January 31, 1898, the plaintiff requested that his suit be dismissed without prejudice to his claim under the Arroyo Hondo Grant. 3 Journal 327‑328 (Mss., Records of the Ct. Pvt. L. Cl.). A fourth suit was filed on March 2, 1893 by William Fraser seeking the recognition of his claim to a tract described as being bounded:

On the north, by the summit of the mountains; on the east, by the ridge where the boundaries of the Arroyo Hondo settlement reaches; on the south, by the mouth of Arroyo Hondo; and on the west, by the log cabin of Jose Gonzales.

He asserted that the tract covered approximately 15,000 acres, but the tract embraced within the above boundaries would appear to cover only a few hundred acres of land lying primarily, if not wholly, within the Arroyo Hondo Grant. The claim was based upon an Act of Possession dated December 23, 1835 which recites that the Judge of the Second District of Arroyo Hondo, Pascual Martinez, acting in accordance with a “determination” by the Ayuntamiento of Arroyo Hondo placed Miguel Chaves in possession of the grant. Obviously, the claim was either (1) a grant of public land by the Ayuntamiento which would be void for want of authority, or (2) merely an allotment of a portion of the Arroyo Hondo Grant. Fraser v. United States, No. 186 (Mss., Records Ct. Pvt. L. Cl.). When the case came up for trial on May 17., 1897, the plaintiff requested that the suit be dismissed. 3 Journal 204 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] 1 Journal 99‑101 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] 3 Journal 321 (Mss., Records of the Ct. Pvt. L, (21).

[9] United States v. Sandoval, 167 U. S. 278 (1896).

[10] Martinez v. United States, 19 S. Ct. 878, 43 L. Ed. 1177 (1899) (mem.).

[11] The Arroyo Hondo Grant No. 159 (Mss., Records of S.G.N.M.).