by J. J. Bowden
The only portion of the present State of Arizona permanently occupied by the white man during Spanish and Mexican times was a small area known as Pimeria Alta which was located in the northern province of Sonora and consisted of the lands lying in the Santa Cruz and San Pedro river Valleys. When Father Eusebio Francisco Kino explored the region in the latter part of the Seventeenth Century, he found Pimeria Alta to be occupied by the Pima and Papago Indians, who were friendly and eager to be organized into regular mission communities. A mission was established at the Pueblo of Guebabi sometime between 1720 and 1732. The Pueblos of Tumacacori and Calabazas were placed under Guebabi as vistas As a result of the Pima Revolt of 1751, a presidio was established at Tubac which was just north of Tumacacori, to maintain the peace. Following the removal of the presidio to Tucson in December, 1775, the Apaches commenced harassing the pueblos and the inhabitants of Guebabi and Calabazas moved to Tumacacori for their mutual protection. The hostility of the Apaches continued to increase until it was questionable if Tumacacori could be maintained. Therefore, a company of Pima allies was stationed at Tubac to guard against their incursion.[1]
On December 17, 1806 Juan Legarro, Governor the Pueblo of Tumacacori, petitioned Alejo Garcia Conde, Governor and Judge Privativo of Sonora and Sinaloa requesting the recognition of the Pueblo’s title to its fundo legal and estancia He stated that, inasmuch as the original grant papers had been lost, he was unable to set forth the terms or boundaries of such ancient grants. However, he understood that the fundo legal covered four square leagues of land and the estancia included the Pueblo of Guehabi and the Voca del Poharo. In response to this petition, Conde, by the authority conferred upon him under Article 81 of the Royal Ordinance of December 4, 1786,[2] directed Manuel de Leon, Commander and Political Judge of the Presidio of Tubac, to measure for the inhabitants of Tumacacori, a fundo legal of “one league towards each wind or the four leagues where it may best suit them, of the best lands adjoining their pueblo,” together with an estancia “for stock of the larger kind, which shall include at the most two sitios in the place most convenient to those natives.” Leon, on January 13, 1807, appointed Lorenzo Berdiego, as counter, Jose Miguel Soto Mayor and Juan Esterani Romero, as measurers, and Leon Osorio and Ramon Rios, as tally keepers, to assist him in surveying the grant. On the following day Leon, his attendants and witnesses, and Legarro went to the Pueblo where Legarro and the other Indians pointed out the central point of the grant, which had been designated during Governor Juan Claudio de Pineda’s administration. Commencing at this point, which was located in front of the cross an the cemetery, they measured north, and down the Santa Cruz Valley, fifty cordeles or 2,500 varas to the division line between the Presidio of Tubac and the Pueblo of Tumacacori, which was located at Lookout Hill and between the cida al bajo and two very large cottonwood trees standing near the river. Returning to the central point, they measured thence south 332 cordeles or 16,600 varas to a point on the upper side of the Canada de Calabazas. Returning to the central point, they measured east 7 cordeles or 350 varas from the river to a point at the foot of a hill and in a grove of mesquite trees. Returning once again to the central point, they ran a line thence west eleven cordeles or 550 varas to a hill situated at mesquite seco. Since it was then late in the afternoon, Leon asked the natives if they wished to suspend the proceedings for the day or commence the survey of the estancia. Whereupon, they advised him that their time was valuable and they preferred to continue as long as the day lasted. The Indians then designated a point located at the mouth of the Potrero River near the site of the abandoned pueblo of Guebabi as the central point of the estancia. A line was run thence north 80 cordeles or 4,000 varas to the south boundary of the fundo legal. After returning to the central point, a line was run south 55 cordeles or 2,750 varas to a point in front of the ancient mission of Guebabi and on a slope descending towards the vado seco. Further operations were suspended due to darkness. Early the next morning an easterly line was run 27 cordeles or 1,350 varas from the central point to a hill in rough country and a 38 cordeles or 1,900 vara westerly line was run to a point on the highest hill seen from the Potrero River. Upon the completion of the survey of the estancia the Indians protested the survey on the ground that the south boundary of the estancia should have been located farther south and at the north boundary of the Romero Ranch, which was called Buena Vista. Leon took the testimony of several witnesses, which tended to support this contention. It also showed that the original grant papers had been in the possession of Father Manuel Fernandez de la Carrera and apparently were lost or destroyed following his death. On March 18, 1807, Conde referred the matter to the Attorney for the Treasury of Sonora for an opinion. Twelve days later, Attorney Tresierra advised the governor that, since the testimony showed that the lands in question were needed for their stock, it could be granted to them subject to the condition that, if the Pueblo of Calabazas was ever reestablished, the land formerly owned by that pueblo should be restored to its inhabitants. Relying on this opinion, Conde, on the following day, granted the Tumacacorians, the fundo legal, the estancia, together with the other lands that they had acquired by purchase, subject to the conditions that the grant should not he alienated but held at all times by the natives for the benefit of the community, and also the understanding that the portion formerly belonging to the Pueblo of Calabaza would be restored to the inhabitants of Calabaza if it were ever resettled. In closing, he ordered the granting decree be submitted to the grantees for their acceptance. Ignacio Diaz Carpio, Agent and Attorney for the inhabitants of Tumacacori, promptly consented to and approved the proceedings. On April 2, 1807, Conde, “in conformity with and in consequence of his previous decree,” issued a Royal Patent granting the premises, “included within the measurement, demarkation, and boundaries, as set forth in the first proceedings, to which the grantees shall be strictly subjected” to the inhabitants of Tumacacori, their children, heirs and successors, subject to the following express conditions:
1. That the survey and adjudication of lands is to he understood without prejudice to any party who may have a better right to the same, and who may present the same in due form;
2. That whenever the deserted Pueblo of Calabazas (which pertains to the mission of Tumacacori) may be resettled, the lands corresponding to the same as a fundo legal of the pueblo and stock ranch, shall be restored by the natives of Tumacacori; and
3. That the interested parties are to keep the said land occupied by cultivation and keeping stock thereon, doing all n their power for the advancement of these branches of industry so that said land shall not, at any time, be entirely abandoned or unoccupied under the penalty that if, for the space of three years, they be totally abandoned, they may be granted to any person who may demand them.[3]
The hostility of the Apaches gradually increased until 1820 when they destroyed the church at Tumacacori and forced the [4]abandonment of the pueblo. Upon the abandonment of the premises, the land reverted to the government and became a part of the public domain. Pursuant to the Act of February 10, 1842[5] which provided for the denouncement and sale of abandoned pueblos, the Treasurer of the Republic of Mexico requested Ignacio Lopez, Intendante of the Treasury of the Department of Sonora, to sell the lands covered by the Tumacacori and Calabazas Grant, which had been valued at 500 pesos. Since Article 73 of the Act of April 17, 1837[6] provided that all purchases and sales of public land valued in excess of five hundred pesos had to be made by the Board of Sales, Lopez assumed that, as Treasurer, he had authority to sell tracts of public land valued at five hundred pesos or less under the law of July 20, 1831,[7] which placed the sale of public land under the jurisdiction of the Treasury Department. The “four leagues of deserted fundo of Tumacacori and the two sitios of the estancia of Calabazas, and the other places thereunto” wore offered for sale for three consecutive days and sold to Francisco Alejandro Aguilar Lopez by Lopez at a public auction held on the third day, April 18, 1844, for 500 pesos. The sale was evidenced by deed dated April 19, 1844. Aguilar, in turn, conveyed the grant to Manuel Maria Gandara in 1856 for $499.[8]
On June 9, 1864 Gandara presented a petition[9] to Levi Bashford, Surveyor General of Arizona, seeking the confirmation of the grant. Before any action was taken on the claim, Gandara gave a power of attorney to Guillermo Andrade, who conveyed the grant to Charles P. Sykes on July 24, 1877 for $12,500. Sykes sold an undivided three sixteenths interest in the premises to John Curry for $9,000 on November 26, 1878.[10] Sykes and Curry presented a similar petition to Surveyor General John Wasson on December 15, 1879.[11] In support of their claim, Sykes and Curry filed the testimonio of the 1807 proceedings, together with the mesne conveyance under which they acquired their title. Sykes testified that he had made a diligent search of the archives of the State of Sonora for the expediente of the 1807 proceedings; and, although he was unable to find it, he pointed out that there were a number of instruments in the archives which referred to the grant. He especially noted that the San Jose de Sonoita and Buena Vista Grants mentioned the grant. Special Agent Rufus C. Hopkins, a land grant expert from California, who had been sent to Hermosillo, Mexico, to examine the archives located there, testified the grant papers were unquestionably genuine. There was also testimony showing that the premises were occupied by Gandara at the time jurisdiction over the area was ceded to the United States. By decision[12] dated January 7, 1880, Wasson recommended the confirmation by Congress of the Sykes and Curry claim to the “lands belonging to the ancient Indian Pueblo of Tumacacori (as a fundo legal), embracing four square leagues, and also of the stock farm or estancia belonging to said pueblo, which embraces the ancient places of Guebabi and La Calabazas, and which is to be located in accordance with the boundaries called for in the original title papers filed in the case.”
A contract for a preliminary survey of the grant was awarded to Deputy Surveyor John L. Harris. After studying the grant papers, he concluded that the fundo legal should cover four square leagues notwithstanding the fact that in the 1807 proceedings, it was described as covering a tract approximately one fourth a league wide and four leagues long. He concluded that the field notes of the fundo legal covered only the cultivable land in the Santa Cruz Valley and Leon had measured the additional distance on both the east and west sufficient to make up four square leagues. He also believed that the estancia which was described in the 1807 proceedings as an approximately one square league tract, included the lands formerly owned by the Pueblo of Guebabi and, therefore, the south line of the grant should be a common line with the Buena Vista Grant. Based upon these opinions, he ran his survey, which was made between February 28 and March 15, 1880, in a manner which caused the fundo legal to contain 17,363.55 acres and the estancia to cover 34,644.40 acres or a total of 52,007.95 acres.[13]
Since Congress obviously was dragging its feet insofar as the confirmation of Southwestern private land claims was concerned, a number of collateral efforts were taken to secure the recognition of the grant or, on the other hand, set aside the order withdrawing the lands from the public domain. The first such action was a quiet title suit filed in the District Court of the Territory of Arizona on June 25, 1887 by Dolores G. Astiazaran, who was one of Aguilar’s heirs, against the Santa Rita Land and Mining Company, which, in the meantime, had acquired Sykes’ and Curry’s interests. The District Court dismissed the action and Astiazaran appealed to the Supreme Court of Arizona which affirmed the decision and held that the courts had no jurisdiction to determine the validity or extent of a Mexican grant.[14] Upon further appeal, the United States Supreme Court also affirmed[15] the decision stating that while a private land claim was pending before Congress, the question of the title of the petitioner could not be contested in an ordinary court of justice. The second collateral attack was a petition presented to the Commissioner of the General Land Office on October 1, 1888 by George N. Atkinson, who had settled within the boundaries of the grant, seeking to have the lands restored to the public domain on the ground it had been unlawfully withdrawn. On March 2, 1889 Commissioner Strother M. Stockslager found that private land claims within the Gadsden Purchase were not within the provisions of the Act of July 22, 1854[16] directing the reservation of claimed lands pending the action of Congress. Therefore, he directed that the notation that the lands covered by the grant be expunged from the tract book as being “unauthorized, improper and illegal.” The Santa Rita Land and Mining Company, as owners of the grant, appealed the decision to the Secretary of Interior, who by decision[17] dated May 8, 1893 held:
The provisions of Section 8, Act of July 22, 1854, respecting private claims in New Mexico, were extended by the Act of August 4, 1854, to include the lands acquired by the Gadsden Purchase, and are in force, and applicable to such private claims within said purchase as are now included in the Territory of Arizona. The reservation of land under the provisions of said Section is statutory in character, and operates proprio viqore upon the land claimed, as soon as claim therefore is made before the Surveyor General, and withholds the same from other appropriation, until disposed of by direction of Congress; and it is not in the power of the executive to change, modify or revoke the reservation thus made.
Meanwhile, Congress created the Court of Private Land Claims in order to settle the serious problem created by the numerous pending claims and three separate suits, were instituted therein in an effort to secure the recognition of the grant. The first suit[18] was filed on March 2, 1893 by William Faxon, Trustee, who, in the meantime, had acquired the interests of the Santa Rita Land and Mining Company.[19] The second suit was filed by Astiazaran on the same day and was based on her conflicting claim as one of Aguilar’s heirs. The third suit[20] was filed on the seine day, but in Santa Fe, by George H. Howard, who had acquired an interest in the grant under a fee agreement entered into by Gandara and his attorney, W. Claude Jones. Howard’s suit was transferred to the Arizona District where it and the other two cases were consolidated.
At the trial the government raised three Special defenses to the confirmation. First, it asserted that the sale to Aguilar was void since a Departmental Treasurer acting alone had no authority to sell public land. It called attention to the fact that even if the Acts of April 17, 1837,[21] and July 20, 1821,[22] permitted the Treasurer to make an independent sale of lands valued at less than 500 pesos the Act of February 10, 1842,[23] which superseded these acts, directed that all sales of public land should be made by the Boards of Sale and contained nothing to suggest that the value of the property affected the power and duty of the board in any way. Second, the government asserted that the grant could not be confirmed, since it was not listed in the Toma de Razon and, therefore, was not duly recorded as required by Article VI of the Gadsden Treaty.[24] The third contention was that the description of the grant was too indefinite and uncertain to carry title to any land. The Court of Private Land Claims, in its majority decision[25] dated June 17, 1895, rejected the grant on the ground that the Board of Sales had exclusive jurisdiction over the sale of land in Sonora after 1831, and no single officer, even a member of the board, could exercise that power. Justices William M. Murray and Thomas C. Fuller wrote a concurring opinion which held that the grant should be rejected on the additional ground that it had not been duly recorded as required by the treaty. The claimants appealed to the Supreme Court of the United States, which affirmed the decision[26] on May 31, 1898.
[1] Bancroft, History of Arizona and New Mexico, 345 (1889); 1 Hodge, Handbook of American Indians North of Mexico 187, 500‑512 (1960); and 2 Hodge, cit., 330, 836‑837.
[2] Reynolds, Spanish and Mexican Land Laws, 60‑61 (1895). This article appointed Governors as Judges Privativos with exclusive jurisdiction over all matters and questions that arose within their jurisdiction relating to the sale, composition and distribution of crown and seignioral land. It provides that the holders thereof, and those who sought new grants of the same, were to set up their rights and make their applications to the Governor, who, after it had been duly investigated by an attorney of the Royal Treasury, was to act thereon “in accordance with law, and in conjunction with their ordinary legal advisors.”
[3] Ibid., 16‑24.
[4] 2 Hodge, Handbook of American Indians North of Mexico 837 (1960
[5] Reynolds, Spanish and Mexican Land Laws, 230 (1895)
[6] Ibid., 225.
[7] (stet.)
[8] S. Exec. Doc. No. 207, 46th Cong., 2d Sass. 25‑28 (1880). The testimony given before the Court of Private Land Claims showed that Gandara was Governor of Sonora in 1842 and again from 1845 to 1853. It was also shown that Aguilar who was Gandara’s brother‑in‑law, took title to the grant in trust for him.
[9] The Tumacacori and Calabazas Grant, No. 7 (Mss., Records of the S.G.A.). It appears that Gandara retained W. Claude Jones to present this claim to Bashford and conveyed a one league tract out of this grant to him under the condition subsequent that he secure the confirmation of the grant. Edson Adams acquired Jones’ interest and presented a claim to such land to Surveyor General J. W. Robbins on January 7, 1882. Robbins forwarded the papers filed in connection with the claim to the General Land office without comment, in order that it might be transmitted before Congress for its consideration, along with the Sykes and Curry claim. S. Exec. Doc. No. 53, 48th Cong., 1st Sess., 2‑3 (1884).
[10] Ibid., 28‑30.
[11] The Tumacacori and Calabazas Grant No. 7 (Mss. Records of the S.G.A.).
[12] S. Exec. Doc. No. 207, 46th Cong., 2d Sess., 40‑41 (1880).
[13] Ibid., 2‑3, 19.
[14] Astiazaran v. Santa Rita Land and Mining Company, 3 Ariz. 20; 20 P. 189 (1889).
[15] Astiazaran v. Santa Rita Land and Mining Company, 184 U.S. 80 (1893).
[16] An Act to Establish the Office of Surveyor General of New Mexico, Kansas, and Nebraska, to Grant Donations to Actual Settlers Therein, and for Other Purposes, Chap. 103, 10 Stat. 308 (1854).
[17] Tumacacori and Calabazas Grant, 16 L.D. 408 (1893).
[18] Faxon v. United States, No. 8 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[19] Astiazaran v. United States, No. 9 (Mss., Records of the Ct. Pvt.L. Cl., Ariz. Dist.).
[20] Howard v. United States, No. 162 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[21] Reynolds, Spanish and Mexican Land Laws, 225 (1895).
[22] Ibid., 159.
[23] Ibid., 239.
[24] 6 Miller, Treaties and Other International Acts of the United States of America, 293‑302 (1942).
[25] 1 Journal 94 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[26] Faxon v. United States, 171 U.S. 244 (1898).
Tumacamori and Calabazos Grant; J.J. Bowden's research on land grants in the southwest.