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Town of Chaperito Grant

by J. J. Bowden

Santiago Martin and eighteen other inhabitants of the Town of Cuesta petitioned the Alcalde of Las Vegas, Juan de Dios Maese on February 4, 1846, for a grant covering a tract of vacant land known as “El Chaperito.” The petitioners assured Maese that the tract was within his jurisdiction and that he had the “attributes formerly exercised by the Ayuntamiento” in connection with the allocation of land to settlers under the colonization law. They designated the following natural objects as the boundaries of the requested premises: 

On the north, the mouth of the canon; on the east, the point of the mesa of the Conchos on the other side of this; on the south, the lands of the inhabitants of Puerticito; and on the west, the point of the Mesa de Aguilar.

On the same day, Maese forwarded the petition together with his report to the Prefect of the Central District of New Mexico, Jose Francisco Baca y Terrus, for his further action. In his report, Maese advised the Prefect that the requested tract was vacant, and located within the Third Demarcation of San Miguel del Vado, which was under his jurisdiction, that while the applicants were landless, they were industrious laboring hands, who desired the premises for agricultural purposes, and that authority to make grants which formerly had been held by Ayuntamientos had been transferred to Alcaldes. Continuing, Maese stated that while he believed he had authority to make the requested grant, he was hesitant since the Alcalde of the Second Demarcation had objected to the issuance of a similar grant at the same location by his predecessor in 1845, on the ground that the lands were within his jurisdiction. Therefore, in order to avoid a similar contention, Maese felt that the Prefect, who was a superior authority, should pass upon the matter. He particularly requested Baca to determine whether the tract was within the Second or Third Demarcation of San Miguel del Vado. In a decision dated February 16, 1846, Baca advised Maese that the petition should have been addressed to the governor. But since the governor was then absent from Santa Fe, and would probably bring the matter to the attention of the Departmental Assembly for its consent, the petitioners might expedite matters by addressing their petition to that body. However, Baca cautioned Maese to mention that he had recommended this procedure for otherwise it might prejudice their position.[1]

Pursuant to the Prefect’s instructions, the interested parties, petitioned the Departmental Assembly for the grant on March 8, 1846, stating that: 

The time was already come in which to commence work on the lands … and if allowed to pass away they will not yield this year, the fruit and benefit that is expected of said land. The undersigned are advised that the present petition should be presented for the deliberation of your Excellencies, through the media of His Excellency, the Governor, who by that authority should bring it forward so that the grant of lands spoken of, might be decreed in conformity with the laws, but, as it has already been said, the time is passing away. The said Most Excellent Sir, is somewhere, out of this capital and on the other hand, … the Honorable Prefect, has caused us to remit the present petition supplicating you to grant the aforesaid lands, at least provisionally.[2]

The Departmental Assembly considered the petition during a regular session held on March 10, 1846, and decided to grant the lands at El Chaperito to the eighteen petitioners together with an additional half league “around about” as a pasture, with the understanding and upon the condition that all subsequent settlers should “enjoy the same rights."

In conclusion, the Departmental Assembly instructed the grantees to present the decree to the Alcalde of “the corresponding Demarcation so as to verify the division of the aforesaid lands.”[3].

At the time the United States acquired New Mexico, the Town of Chaperito was a thriving little community. situated on the banks of the Gallinas River which passed through the grant. While the inhabitants of the Town of Chaperito filed their grant papers in the Surveyor General’s Office on June 27, 1855, a petition seeking its confirmation was not filed until thirty‑three years later. This petition was dated March 18, 1888, and signed by two hundred and sixteen persons, who claimed an interest in the grant. Surveyor General George W. Julian promptly proceeded with an investigation into the validity of the claim. A hearing was held on July 14, 1888, at which time a number of witnesses appeared and gave a considerable amount of oral testimony concerning the validity of the grant and the location of its boundaries. This testimony tended to establish two principal points. The first point was that the grant papers, which came from the Archives, were un­questionably genuine. One of the witnesses, Gabriel Gonzales, testified that he was one of the original grantees and, while the grant papers did not show that possession had been delivered, Maese had placed him and his associates in legal possession of the land in 1846 and allotted individual farm tracts. The claimants filed seventeen separate “grant deeds” evidencing such allocations. The claimants asserted that they had established the genuiness of their title documents and that possession had been given. Thus, they had a perfect grant which should be recognized. However, in the event the Surveyor General should find their grant to be imperfect, their use and occupancy of the premises created an equitable title which Mexico undoubtedly would have recognized and confirmed. Second, the testimony showed that the grant conflicted with the Antonio Ortiz Grant,[4] which had been confirmed for 163,921.68 acres. In connection with this conflict, the witnesses testified that prior to 1846, the land covered by the Town of Chaperito Grant had been vacant and that the Antonio Ortiz Grant could not have been made in 1819. They pointed out that history showed that in 1819 there were no European settlements in New Mexico east of the Pecos River and, therefore, there could have been no “road to Conchos” in existence at that time. Thus, the call for that road as being the southern boundary of the Antonio Ortiz Grant indicated that the grant was fraudulent. [5]One witness testified that he was present when the road to the Conchos was blazed in about 1863 in connection with the establishment of Fort Bascom. Next, the claimants contended that the Sawyer & McBroom Survey of the Antonio Ortiz Grant was erroneous. In support of this contention, they pointed out that the western boundary of the Antonio Ortiz Grant, as defined in its grant papers, was the Canon de Laurino which was located just east of the Town of Chaperito but that the Sawyer & McBroom Survey of the Antonio Ortiz Grant established that boundary at the Canon de Aguilar. The claimants in their closing argument contended that if the survey and patent was erroneous, their rights were protected by Section 1 of the Act of March 3, 1869, which stated that the confirmation of the Antonio Ortiz Grant: 

... shall only be construed as a quit-claim or relinquishment of all title or claim on the part of the United States … and shall not affect the adverse rights of any person or persons to the same of any part or parcel thereof.6]

While Julian was impressed with the persuasiveness of these arguments and the large number of claimants who would be injured if their claim was rejected, he nevertheless was confronted with the decision of the United States Supreme Court in the vigil case,[7] which had held that the Assembly of New Mexico had no power to cede public lands. This dilemma coupled with his pending efforts to have the patent to the Antonio Ortiz Grant set aside on other grounds caused Julian to postpone the rendering of a decision on the claim. The Secretary of Interior, Hoke Smith, in a decision dated September 23, 1893, upheld the validity of the patent of the Antonio Ortiz Grant. By that time, it was too late for the Surveyor General’s Office to act upon the claim. As a result of Section 6 of the Act of March 3, 1891,[8] which prohibited the institution of suits for the confirmation of claims covering lands which had been acted upon by Congress, the Town of Chaperito Grunt was never presented to the Court of Private Land Claims.

Since the inhabitants of the Town of Chaperito Grant had held actual possession of their individual farm tracts since 1846, they had perfected limitation titles to such lands notwithstanding the fact that they covered portions of the Antonio Ortiz Grant. Early in 1888, a number of the inhabitants of the Town of Chaperito Grant commenced the construction of a dam and the expansion of their irrigation system in order to place an additional thousand acres of land under cultivation. On February 7, 1888, the owners of the Antonio Ortiz Grant filed a bill of complaint in the Fourth Judicial District Court of New Mexico seeking an injunction restraining such parties from constructing the facilities and also from appropriating water from the Gallinas River. The District Court dismissed the bill on September 22, 1890, stating that the complainants had an adequate remedy at law. The complainants appealed the decision to the New Mexico Supreme Court, which held: 

While it is clear that we would not enjoin the defendants and their associates from maintaining that possession and continuing to appropriate the water which they had previously appropriated, it is equally clear that it is our duty to restrain them from carrying out what the master characterizes in his findings as “their more ambitious project in an agricultural way than any heretofore attempted in that community,” from taking up new lands and appropriating additional water ...

Our conclusion, therefore, is that this case should be reversed and remanded to the court below, with instructions to that court to refer the cause to a master to take proof and report to the court what portions of the lands within the exterior boundaries of the Antonio Ortiz Grant were in the actual possession of the defendants and their associates, and were actually possessed, cultivated, and occupied by them prior to the seventh of February, 1888, and what portion of the waters of the Gallinas River had been appropriated by the defendants and their associates for the purpose of irrigating the said lands and for their domestic purposes; that the defendants and their associates, upon the incoming of such report, should be enjoined and restrained from taking up any more land or appropriating any more water for the purposes of irrigating until such time as they had in a proper proceeding attacked and overcome the complainants’ title; and that they be enjoined and restrained from constructing new dams and new ditches for the purpose of irrigating the lands so possessed by them prior to the seventh day of February, 1888, but that they be not restrained from maintaining old dams and old ditches for that Purpose.[9]

The practical effect of this decision was to recognize the rights of the inhabitants of the Town of Chaperito to the lands which had been allotted to the original grantee in 1846, notwithstanding the fact that they were situated within the Antonio Ortiz Grant.

[1] Archive No. 929 (Mss., Records of the A.N.M.).

[2] Archive No. 229 (Mss., Records of the A.N.N.).

[3] Ibid

[4] The Antonio Ortiz Grant, No. 42 (Mss., Records of the S.G.N.M.).

[5] It should be noted in this connection that both the Anton Chico and Preston Beck, Jr. Grants call to adjoin the Antonio Ortiz Grant.

[6] An act to confirm certain private land claims in the Territory of New Mexico, Chap. 152, Sec. 1, 15 Stat. 342 (1869).

[7] Vigil v. United States, 10 Wall. (77 U.S.) 423 (1870).

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

[9] Waddingham v. Robledo, 6 N. M. 347, 28 p. 663 (1892).