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The Gervacio Nolan Grant

by J. J. Bowden

Gervacio Nolan, for himself and on behalf of Juan Antonio Aragon and Antonio Marie Lucero, petitioned Manuel Armijo, Governor of New Mexico on November 15, 1845, requesting a grant covering a tract of vacant land located in a little canyon on the Rio Colorado. The petition described the tract as being bounded:

On the north, by the Miranda and Beaubien Grant; on the east, by the hills on the eastern side of the Rio Colorado; on the south, by a line lying one league south and east of the Sapeyo River; and on the west, by a line running southerly from the northern boundary through the Canoncito de Ocate and a point five hundred varas west of the little hills of Santa Clara to the southern boundary.

The petitioners advised the Governor that while the tract contained some agricultural lands, it was primarily range lands. Nolan, a naturalized citizen who had resided in New Mexico for twenty-three years, requested that the land be granted in consideration of the services he and his associates had rendered the country on expeditions against the Indians. Armijo, as a recompense for such services, granted the land to the petitioners on November 18, 1845, with the boundaries set forth in their petition. He directed the grantees to apply to the Alcalde of the Town of Mora in order to secure the delivery of legal possession of the grant.

Pursuant to Armijo’s decree, Thomas Benito Lalanda, Alcalde of the Town of Mora, placed the grantees in legal possession of the lands covered by the grant on November 30, 1845, subject to the rules and customs of the country regarding colonization. After possession was given to Nolan and his associates, it was found that a portion of the land granted to them was covered by the grant which had been made in 1835 to the Town of Mora. In an effort to avoid a boundary dispute, Nolan and his associates contacted the Alcalde of Mora, Manuel Lujan, and asked him to see if the inhabitants of the Town of Mora Grant had any complaints or objections to boundaries of the Gervacio Nolan Grant as set forth in their testimonio. Lujan contacted the principal settlers of the Town of Mora Grant who signed a document dated February 23, 1846, in which they approved the boundaries of the Gervacio Nolan Grant and released any claim they had to the area in conflict.[1]

Nolan and his co‑grantees commenced using the grant as a pasturage for their livestock, but it appears that they never actually moved to or resided upon the tract. On May 27, 1848, Lucero and Aragon sold their interests in the grant to Nolan for a total consideration of one hundred dollars. Nolan died intestate in 1858. On February 27, 1860, the children and widow of Gervacio Nolan petitioned[2] the Surveyor General seeking the confirmation of the grant. The claim was set for hearing on April 4, 1860, at which time they appeared and presented their papers and oral evidence in support of their claim. The only witness heard was Thomas Benito Lalanda, who testified that he was the Alcalde of Mora in 1845. Continuing, he stated that Nolan called upon him requesting him to place the grantees in legal possession of the grant, which he refused to do without an order from the governor. However, when Nolan showed him his testimonio he delivered possession of the grant as stated in his certificate. After due consideration of the claim, Pelham, in a decision dated July 10, 1860, found the grant papers to be genuine. He also found that the grant was made as: 

… remuneration or recompense for services rendered to the country in time of need, which is believed, and is so held by the courts of the country, to be sufficient consideration to sever the lands from the public domain and vest the title in the claimants... Deeming it to be a good and valid grant, and that the land embraced within the boundaries set forth in the petition and judicial possession to be severed from the public domain, and the title therefor vested in the heirs and legal representatives of Gervacio Nolan, it is hereby approved and transmitted for the action of Congress on the premises.

This grant and the Rio Don Carlos Grant, which is located in Pueblo County, Colorado and was also owned by Nolan, were considered and favorably reported[3] on by the House Committee of Private Land Claims on July 1, 1868, but Congress withheld confirmation of them pending further investigation when it became known that they covered more than a total of eleven leagues. By an act[4] approved July 1, 1870, Congress confirmed the Rio Don Carlos Grant to the extent of eleven leagues. The act further provided that the issuance of a patent to the grant would be taken as “full satisfaction of all further claims or demands against the United States.”

A preliminary survey of the Gervacio Nolan Grant was made between December, 1881, and October, 1882, by Deputy Surveyor John Shaw. This survey showed the grant as containing 575,968.71 acres and was approved by Surveyor General Henry M. Atkinson on March 2, 1883. Dr. I. M. Cunningham, one of the owners of the grant, protested the survey on the ground that it failed to properly locate the west boundary of the grant. Shaw’s survey showed that boundary as being a straight line running almost due north and south. Dr. Cunningham contended that the Canonicito de Ocate, which was located near the northwest corner of the grant, was located approximately twelve miles west of the place where Shaw’s survey located it, and therefore, the boundary should be re‑run in a northwesterly to southeasterly direction. If Dr. Cunningham’s contention was correct, then the grant would include an additional 60,000 to 80,000 acres. An extensive investigation was conducted and on January 17, 1885, Surveyor General Clarence Pullen found that the place which the claimant asserted was the Canoncito de Ocate was, in fact, the Puertocito de Ocate and, therefore, the Shaw Survey correctly located the west boundary line of the grant. This decision was appealed to Secretary of Interior L. Q. C. Lamar, who, by decision dated January 9, 1886, dismissed the protest on the ground that the acceptance of the patent to the Rio Don Carlos grant stopped the heirs and assignees of Gervacio Nolan from asserting any further claim for land against the United States.

The area in conflict was then thrown open for entry and settlement. Hundreds of ejectment suits were filed by the claimants of the grant against settlers who had located in the disputed area. One these was appealed to the United States Supreme Court. The only question involved in the appeal was whether the instructions given to the jury in the trial court were proper. The trial court had instructed the jury that if it could not definitely locate the boundaries of the grant it must hold for the defendant. The Supreme Court upheld the judgment by stating that it saw nothing in the jury charges to which the plaintiff could properly complain. However, the Supreme Court refused to pass on the question raised by the defendant as to whether or not the act of July 1, 1870,[5] affected the plaintiff’s claim to the balance of the grant.[6]

The refusal of the Supreme Court to pass on the legal effect of the act of July 1, 1870,[7] on their claim and the creation of the Court of Private Land Claims gave the owners of the Gervacio Nolan Grant another opportunity to seek the confirmation of their title. Suit for that purpose was instituted[8] on November 11, 1892. In its answer, the government raised four principal defenses. First, that on November 18, 1845, Governor Armijo had no authority to grant land in consideration of past military services. Second, that the act of July 1, 1870,[9] was a final adjudication of the rights of Gervacio Nolan and his heirs and assigns in and to all private land claims protected by the Treaty of Guadalupe Hidalgo. Third, that Nolan could not hold, directly or indirectly, more than eleven leagues of land under the colonization laws and that the acceptance of the Rio Don Carlos Grant in 1843 exhausted his right to secure additional lands in 1845. Fourth, that the grant in reality was made solely to Nolan; Aragon and Lucero were not grantees but were merely figureheads, and, therefore, Nolan, as the assignee of Aragon and Lucero was not entitled to a confirmation of the grant to the extent of twenty-two leagues. The Court of Private Land Claims concurred with the defendant and in its opinion[10] dated April 14, 1894, rejected the claim in its entirety. The plaintiff appealed to the United States Supreme Court, but the appeal was dismissed[11] on October 13, 1897, when the plaintiff failed to furnish a printed transcript of the record as required by Rule 10 of the Court.

[1] H. R. Exec. Doc. No. 28, 36th Cong., 2d Sess., 4‑19 (1861).

[2] The Gervacio Nolan Grant, No. 39 (Mss., Records of the S.G.N.M.).

[3] H. R. Report No. 71, 40th Cong., 2d Sess., 5 (1868).

[4] An act to confirm the title to the heirs of Gervacio Nolan, deceased, to certain lands in the Territory of Colorado, Chap. 202, 16 Stat. 646 (1870).

[5] Ibid.

[6] Pinkerton v. Ledoux, 129 U.S. 346 (1888).

[7] Op Cit, see Note 4.

[8]  Pinkerton v. United States, No. 46 (Mss., Records of the Ct. Pvt. L. Cl.).

[9] Op. Cit. See Note 4.

[10] 2 Journal 82 (Mss., Records of the Ct. Pvt. L. Cl.).

[11] Pinkerton v. United States, 170 U.S. 945 (1897).