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Vertientes de Navajo Grant

by J. J. Bowden

Carlos Jose Perez de Mirabal, a native of Castile, Spain, petitioned Governor Pedro Fermin de Mendinueta requesting a grant covering the tract of land which he had been occupying for the previous eight years. He described the tract as being situated on the slopes of the Navajos and bounded:

On the north, by the hill known as Santa Rosa; on the east, by the lands of Salvador Jaramillo; on the south, by the pass through which the road to the Pueblo of Laguna runs; and on the west, by the mountain which runs towards Cebolleta.

He called the governor’s attention to the fact that a number of Navajos were then living peacefully upon the premises, but most of them had settled there subsequent to him. He promised to continue to attract them to the church and not to drive them from their villages. He pointed out that while he was not a descendant of the conquerors of New Mexico, he had served the king faithfully and his son had been killed in the performance of his duties. In, response to this petition, Mendinueta conceded the requested tract to Mirabal on May 21, 1768, without prejudice to the rights of any third parties and particularly the Indians who had settled there, even though they came after him. Mirabal was encouraged to continue his efforts to attract the Indians to the grant by gentle means. The governor also commissioned Bartolome Fernandez, the Alcalde of the Queres Nation, to place the grantee in possession of the lands covered by the grant. On June 18, 1768 Fernandez summoned Jaramillo and the Indians, who were residing on the grant, and after reading the governor’s decree to them, was assured that they had no objections to the issuance of the concession. Fernandez stated that due to its roughness he could not measure the land. However, he estimated that it covered an area of little less than two leagues and was too small to accommodate any other families. Following these find­ings, the alcalde delivered royal possession of the grant to Mirabal with all the formalities required by law.[1] Thereafter, Mirabal and his descendants continuously occupied and used the grant as a ranch.

 

Following the conquest of New Mexico by General Stephen Watts Kearny, the grant owners were authorized to present their titles for recordation.[2] Pursuant thereto, the owners of the grant recorded their grant papers some time prior to July 1, 1848.[3] On January 27, 1883 Rafael Armijo, who purchased an interest in the grant from one of the descendants of Clemente Gutierrez, petitioned[4] Surveyor General Henry M. Atkinson seeking the confirmation of the grant. In support of his claim, Armijo flied a certified copy of the grant papers which had been made by the Register of Lands. The paper recorded in the office of the Register of Lands was a certified copy made on May 4, 1834 by the Alcalde of Santa Fe, Santiago Abriu, at the request of Francisco Sarracino. Sarracino requested the certified copy since the testimonio was in a deteriorated condition. Armijo also filed a deed dated December 16, 1769, wherein Maribal conveyed the grant to Salvador Jaramillo for 2,475 reales and a deed dated April 11, 1772, south of his house to Clemente Gutierrez. Since he grant was located wholly within the Town of Cebolleta Grant[5] which previously had been confirmed and patented, Atkinson took no action on the claim.

 

Meanwhile, Mariano S. Otero, who acquired an interest in the grant by inheritance and purchase, filed suit[6] in the Court of Private Land Claims on March 2, 1893 in an effort to secure the recognition of the Canada de los Alamos and Vertientes de Navajo Grants. The government filed a demurrer to the petition on the ground that it covered two distinct grants. The court sustained the demurrer but au­thorized the plaintiff to file an amended petition covering each grant. On August 23, 1893 Otero filed[7] an amended petition in connection with the Vertientes de Navajo Grant. The government in its amended answer asserted that since the grant was located wholly within the Town of Cebolleta Grant, which previously had been confirmed by Congress. The court was precluded under Section 13(4) of the Act of March 3, 1891 [8]from taking any action in the claim other then dismissing the suit for want of jurisdiction. For purposes of testing the government’s defense, the case was set for hearing on this issue. In its decision dated May 7, 1900, the court held that it had no power to enter a judgment confirming the grant since, by the Act of March 3, 1869,[9] which confirmed the Town of Cebolleta Grant, Congress had acted upon the lands. However, it noted that the Act of Confirmation operated as a quitclaim and, thus, added nothing to the character of the claim of those in whose favor it was enacted nor impaired the right of any adverse claimants of the property. The court pointed out that Section 7 of the Act of 1891 gave it full power and authority to hear and determine all questions relative to the title and boundaries of the grant or claim presented for adjudication. The eighth section of the Act provides that where a claim is presented, which allegedly was based upon a perfect grant, the court is to proceed to hear, try and determine the validity of the claimants thereto its extent, location and boundaries. The court interpreted this language as giving it authority to inquire into the validity of a grant presented to it even though the court had no power to confirm it. It found that the limitation contained in the statute went only to the extent of the judgment and not to the power of the court to enter a decree. In further support of this proposition, the court pointed, out that the rights of the plaintiff were not affected by the confirmation of the Town of Cebolleta Grant, but, on the other hand, was required by Section 12 of the Act to file his claim on or before March 3, 1893 or it would be forever barred. Continuing, the court stated that:

Statutes are sometimes found to abound in absurdities and incongruities. But we ought not assume that Congress intended to enact into law the palpable absurdity that in order to preserve their rights in the property the claimants must appeal to a tribunal which had no power to grant them any relief. Another consideration applicable also to imperfect grants is that the rights arising under them can be determined only by Congress, or by the tribunals upon which it confers the jurisdiction. In the absence of legislation no judicial tribunal in the land has jurisdiction to determine, either the extent of the right arising under such grants or to afford any remedy in reference to them as created; therefore, if the matter was left as one of mere presumption, the presumption would be that the intention was to confer jurisdiction to determine every question arising out of the claims.

 

Therefore, the court ordered that the Town of Cebolleta Grant, a quasi corporation, be made parties defendant and the claim be set for trial on its merits.[10] The United States’ attorney considered appealing this decision but decided not to because he did not believe Otero could prevail in a local court even if the Court of Private Land Claims held his grant to be complete and perfect.

 

At the trial of the case on August 13, 1900, The plaintiff offered his muniments of title, documentary evidence connecting himself with the original grantee and oral testimony tending to show possession of the lands in question by the interested parties for a long period. The government objected to the reception of the title papers on the ground that they were mere copies certified as being true and correct by an alcalde and that officer had no authority under Spanish and Mexican law to make certified copies that would be entitled to any dignity as evidence. By decision[11] dated December 10, 1900, the court rejected the claim on the ground that the grant had not been established by proper proof since the alleged certified copy had no probative force.

 

 


[1] The Vertientes de Navajo Grant, No. F‑195 (Mss., Records of the S.G.N.M.).

[2] Kearny Code, Register of Lands, Sec. 5, 1 New Mexico Statutes 54 (1942).

[3] B Register of Lands 3‑8. This book was formerly in the Surveyor General’s office, but has been lost.

[4] The Vertientes de Navajo Grant, No. F-195 (Mss., Records of the S.G.N.M.).

[5] The Town of Cebolleta Grant, No. 46 (Mss., Records of the S.G.N.M.).

[6] Otero v. United States, No. 207 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] Otero v. United States, No. 270 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] Court of Private Land Claims Act, Chap. 539, Sec. 13(4), 26 Stat. 854 (1891). This sub‑section provides: “No claim shall be allowed for any land the right of which has hitherto been lawfully acted upon and decided by Congress, or under its authority.”

[9] An Act to Confirm Certain Private Land Claims in the Territory of New Mexico, Chap. 152, 15 Stat. 342 (1869).

[10] 4 Journal 164 (Mss., Records of the Ct. Pvt. L. Cl.). It would appear that the court probably erred in rendering this decision. The United States Supreme Court in Town of Real de Dolores del Oro v. United States, 175 U. S. 71 (1899) had held that a claim within the limits of a grant which had been confirmed by Congress and for which a patent had been issued to another party, is properly rejected by the Court. However, the same court in Ainsa v. United States, 175 U. S. 76 (1899) , held that the owners of a complete and perfect grant could assert his rights against any adverse claimant in the local courts without previously having the validity thereof confirmed by Congress or the Court of Private Land Claims. But, the Ainsa case did not resolve the question raised by the Court of Private Land Claims decision as to how the owner of an imperfect conflicting claim could obtain his day in court. Perhaps his only recourse would be to petition Congress for direct relief.

[11] 4 Journal 224 (Mss., Records of the C. Pvt. L. Cl.).