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Town of Atrisco Grant

by J. J. Bowden

On March 19, 1881 the heirs and legal representatives of Jose Hurtado de Mendoza and other inhabitants of the Town of Atrisco filed[1] a petition in Surveyor General Henry M. Atkinson’s office seeking the confirmation of a certain grant known as the lands of the Rio Puerco, which allegedly had been granted to Mendoza and fourteen other inhabitants of the Town of Atrisco by Governor Pedro Fermin de Mendinueta. In support of their claim, the petitioners filed a copy of the expediente [2]of the grant, which consisted of three instruments. The first was a petition wherein Mendoza and his associates asked Mendinueta to grant them the tract of land extending from the Bosque Grande in the Rio Puerco to the Cerro Colorado. They called his attention to the fact that, since the Town of Atrisco was very crowded and all the lands to the north, east, and south were appropriated, they had occupied the area west of the town as a pasturage for their livestock. They alleged that, notwithstanding the fact that their settlement had created a bulwark between the Apaches and the Town of San Francisco, the San Franciscans had driven them off the land, and thereby caused them a great deal of hardship. They stated that they believed the premises were public lands; but in the event it was found that they belonged to the Town of San Francisco, it should be held that they had forfeited and abandoned the tract by non-use. The second instrument was a granting decree dated April 28, 1768 wherein Mendinueta, in consideration of the limited amount of land held by the inhabitants of Atrisco and their need for an adequate pasturage for, the increasing herds of livestock and a firewood gathering, granted them a tract bounded:

On the north, by the Cerro Colorado which is located two leagues south of the Town of San Francisco del Rio Puerco; on the east, by the ceja of the Rio Puerco mountain; on the south, by a point three leagues south of the Cerro Colorado; and on the west, by the Rio Puerco.

 However, he expressly excluded any of the Atriscans who had sufficient pasture land to meet his needs. In closing, Mendinueta directed the Alcalde of Albuquerque, Francisco Tribol Navarro, to deliver royal possession of the premises to the grantees. The final instrument is the Act of Possession and contains a description of the proceedings conducted by Navarro in connection with the formal juridical delivery of possession to the grantees. It shows that on May 7, 1768 Navarro notified the inhabitants of the Town of San Francisco of the grant. On the following day the San Franciscans met with Navarro and protested the grant on the grounds that it conflicted with their lands. Thereupon, Navarro ordered them to produce their grant papers. They met again on the ninth, and upon examining their title papers Navarro noted that someone had fraudulently altered the grant papers to fix the south boundary of the grant two leagues from the town at the Cerro Colorado, and he could vaguely see that it had originally read two leagues from the town towards the Cerro Colorado. Since the Cerro Colorado was located a substantial distance south of the town, this change made a material difference in the location of the south boundary of the San Franciscans’ grant. The San Franciscans stated that the clerk had made the change in order to correct a scribner’s error. However, Navarro held that this was not true, since the practice in New Mexico was for the clerk to draw a line through a mistake and note the error at the foot of the page instead of erasing and making the change without mentioning or referring to it. Therefore, he limited the San Franciscans’ grant to a distance two leagues south of their town and, after surveying the distance, fixed the common boundary between the two grants at a point opposite two large cottonwoods standing close together on the west side of the Rio Puerco. The southern boundary of the Atriscans’ land was then located three leagues farther south at a cottonwood tree standing on the edge of the Rio Puerco, which was known as the Alamo Gacho. Following the completion of the survey, Navarro placed “the people of Atrisco” in royal possession of the tract, which he named San Jose after Hurtado’s patron saint. He also allotted the rancho that formerly had been owned by Diego Antonio Duran y Chaves to Hurtado and directed the other settlers to locate their ranchos south of Hurtado’s. The concession was described as being a special grant for the benefit of the citizens of Atrisco and not a heritage. The applicants were especially cautioned against introducing new settlers on the grant without the prior consent of the inhabitants of the Town of Atrisco.

A supplemental petition[3] was filed by the inhabitants of the Town of Atrisco in Surveyor General George W. Julian’s office on December 31, 1885 in which they also asserted title to a tract of land which allegedly had been granted the founders of the Town of Atrisco by the Spanish government in or about 1700. This tract was described as being bounded:

On the north, by the Barranca de Juan de Perea; on the east, by the Rio Grande; on the south, by the lands of Antonio Baca; and on the west, by the ceja of the Rio Puerco.

 They stated that the town was in existence at the time the United States acquired New Mexico, and had been peaceably occupied by them and their ancestors for more than two and a half centuries. The claimants also alleged that the original grant papers of 1700 had been lost, and in an effort to sustain the claim, introduced a number of deeds showing there had been a trafficking in ranchos within the grant from an early date, church records indicating the existence of a sizeable settlement at Atrisco early in the Eighteenth Century, and oral testimony tending to fix the boundaries of the concession. They asserted that the facts and circumstances would raise a presumption that a valid grant had been made to the inhabitants of Atrisco in or about 1700, or, in the alternative, that the Atriscans had acquired title to the tract by prescription.

By decision[4] dated January 28, 1886, Julian held that the circumstantial evidence presented by the claimants warranted the presumption that a grant had bean made to them in or about 1700 under laws, usages and customs of Spain and Mexico, and the papers evidencing the 1768 concession were genuine. Therefore, he recommended the confirmation of both claims by Congress, and estimated that they jointly covered an area eight miles from north to south and. fourteen miles from east to west, or approximately 72,000 acres. Notwithstanding Julian’s favorable report, the grant was neither surveyed nor passed upon by Congress.

On February 26, 1892 a petition, signed by over 225 persons who claimed to be the owners of the two grants, petitioned the District Court of Bernalillo County, asking the court to incorporate their interests by creating a body politic and corporation under the name of the Town of Atrisco, as provided by the Act of February 26, 1891.[5] An election was held, and more than two thirds of the voters elected to incorporate, their interests. Therefore, on April 11, 1892, the court granted their request and declared the petitioners and their successors to be a body politic. Less than eight months later, on November 7, 1892, the Town of Atrisco, a municipal corporation, filed suit[6] in the Court of Private Land Claims against the United States and the City of Albuquerque requesting the confirmation of the two grants to it in trust for its inhabitants. It estimated that the first grant contained 41,500 acres and the second contained about 26,000 acres. It was also alleged that a portion of the 1700 grant conflicted with the Town of Albuquerque Grant but that the Town of Atrisco Grant was the senior grant and thus, should prevail. The government filed an answer denying that a grant had been made to the Atriscans in or about 1700 and alleging that the 1768 grant was an individual grant made to the fifteen petitioners and, therefore, the plaintiff had no interest in any of the land upon which to base a claim. Continuing, it asserted that the 1768 concession was not a grant but was merely a life estate or license in favor of Hurtado and his associates. Subsequently, a supplemental answer was filed based upon the discovery of the papers to an old grant covering the lands upon which the Town of Atrisco was situated. This document showed that the Atrisco area probably was owned by Pedro Duran de Chaves prior to the Pueblo Revolt in 1680.[7]  On October 7, 1692 Fernando Duran do Chaves petitioned Governor Diego de Vargas asking for a new grant covering a tract known as the Angostura, which he had owned prior to the rebellion, and the Atrisco Tract, which he represented had been occupied by his father, Pedro Duran y Chaves, and covered the lands lying between the bluff rear Juan de Perea’s house down the river to Juan Domingues’ corrals. After considering the petition, Vargas recognized that the Angostura had belonged to Fernando and that Atrisco had belonged to his relatives. Therefore, he conceded both tracts to Fernando and held that he was entitled to all the privileges of a conquistador and founder. The Town of Atrisco asserted that the lands covered by this grant were not given to Fernando as an individual but rather as a contractor or founder with the privilege to establish a new colony or settlement under the laws of Spain.[8] While there was no evidence that royal possession of the lands at Atrisco was ever delivered to Fernando, it was concluded that there was enough evidence to presume that it actually had been given. Thus, when the case came up for trial on August 16, 1894 issue was joined over the question as to whether or not the grants were individual or community grants. If they were individual grants then the Town of Atrisco had no interest upon which to base a claim to the land. The court, by decision[9] dated September 4, 1894, held that under Spanish and Mexican customs a grant covering a large tract of land to a large number of heads of families was understood to be a community grant. In connection with the conflict between the grants of the Towns of Atrisco and Albuquerque, the court held that there was no evidence that the Villa of Albuquerque had a corporate existence prior to 1788 and, therefore, there could be no presumption that it was entitled to four square leagues of land by operation of law until that date[10]. Thus, the Town of Atrisco Grant should prevail. The government appealed the decision but dismissed it before it came up for hearing.

 Once the decision became final, the grant was officially surveyed by the Surveyor General’s office. A contract was awarded to Deputy Surveyor George H. Pradt whose work showed that the two tracts covered a total area of 82,728.72 acres. A patent was issued to the Town of Atrisco on May 5, 1905.[11]

Between 1905 and 1943, the inhabitants of the Town of Atrisco entered their names on the town rolls in order to establish their title to a fractional interest in the common lands of the grant. The Supreme Court of New Mexico, on December 14, 1951, held [12] that it was firmly established that the settlers upon a community grant had only the right to the common use of the unappropriated lands within its boundaries and they did not have a beneficial interest in such lands.

 


[1] The Town of Atrisco Grant, No. 145 (Mss., Records of the S.G.N.M.).

[2] Archive No. 694 (Mss., Records of the A.N.M.).

[3] The Town of Atrisco Grant, No. 145 (Mss. Records of the S.G.N.M.).

[4] Ibid.

[5] An Act relating to Community Land Grants, and for other purposes, Chap. 86, Laws of New Mexico, 162‑174 (1891). This Act provides that such a petition could be filed by the owners and proprietors of a land grant and, if two thirds of the voters voted for incorporation, the court would incorporate the owners of the grant.

[6] Town of Atrisco v. United States, No. 45 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] Greenleaf, “Atrisco and La Cirvelas 1722‑1769,” XLII New Mexico Historical Review 5 (1967).

[8] Recopilación de los Leyes de los Indios Law 11, Book 4, Title 5 (1843).

[9] 2 Journal 180‑182 (Mss., Records of the Ct. Pvt. L. Cl.).

[10] The United States Supreme Court subsequently held that the Town of Albuquerque had. not received a grant of four square leagues by operation of law. United States v. City of Albuquerque, 171 U.S. 683 (1898) (mem.).

[11] The Town of Atrisco Grant, No. 145 (Mss., Records of the S.G.N.M.).

[12] Armijo v. Town of Atrisco, 56 N.M. 2, 239 P. 2d 535 (1951).