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San Miguel del Bado Grant


By Malcolm Ebright[1]

Introduction

The San Miguel del Bado grant was the first major community land grant to expand the periphery of Spanish settlement on the eastern frontier of New Mexico around Pecos Pueblo. After the Comanche Peace Treaty was signed by Governor Juan Bautista Anza in 1786, the entire area of Spanish settlement from Abiquiú to Ojo Caliente to Picuris, Las Trampas, Truchas, and Pecos was opened up for expansion of Hispanic settlements. [2] New Mexico population figures begin to show a rapid increase in the number of Spaniards in the late 1790s, as new settlements were formed within land grants in the Taos and Pecos areas.[3] It is within this expanding of the edge of Spanish settlement that the San Miguel del Bado Grant was made in 1794. In late November of that year, Lorenzo Marquez, for himself and on behalf of fifty-one other Santa Fe families, asked Governor Fernando Chacón to make them a grant of lands at the place called El Vado, and the surrounding area.[4] Marquez was living in Santa Fe at the time he presented his petition to Governor Chacón, but was familiar with the area around Pecos Pueblo, possibly as a presidio soldier stationed there.[5]

The Making of the San Miguel del Bado Grant

Lorenzo Marquez described the fifty-one men who joined him in the petition as having large families and small amounts of land in Santa Fe, insufficient for their support due to “the great scarcity of water which owing to the great number of people [in Santa Fe] we cannot all enjoy.”[6] The petition states that thirteen of the fifty-two petitioners were Indians, probably mostly Pecos Pueblo Indians and it is likely that a large portion of the fifty-one families were either Genízaros, Indians or mestizos.[7] Three decades earlier the population of Santa Fe was said to have been fourteen percent Genízaro.[8] The best description of the makeup of the settlers of the San Miguel del Bado Grant is by Fray Angélico Chávez, an early authority on Genízaros:

“San José and San Miguel del Vado were settled by Spanish military personnel and the genízaro colony of Santa Fe; also by Indians of other pueblos, including the more progressive Pecos Indians, who entered into a genízaro status and thus contributed to the depopulation of their pueblo; the San José and San Miguel Genízaros also assimilated many converts from the Comanche and other Plains tribes.”[9]

The petition and granting decree for the San Miguel del Bado grant seem to follow a form similar to other land grants of that period, suggesting that there was a land grant template or model copied by scribes during the latter part of the eighteenth and early nineteenth century.[10] The petitioners asked for land at El Vado described as follows:

“On the north the Rio de la Vaca, from the place called the Rancheria to the Agua Caliente, on the south the Cañon Blanco, on the east the Cuesta, with the little hills of Bernal, and on the west the place commonly called the Guzano.”[11]

The map included as Figure 2, based on the 1879 survey by deputy surveyor John Shaw shows, how these boundaries were located on the ground.

The petitioners said they had twenty-five guns among them and they promised to “enclose ourselves in a plaza well fortified with bulwarks and towers,” as well as supply themselves with more firearms and ammunition. They told the governor there was room enough on the land for themselves and “for everyone in the province not supplied.” It is clear from the petition that protection against Indian raids (mostly Comanche and Apache), was one of the primary concerns of the settlers.[12]

Governor Fernando Chacón made the grant to the petitioners on November 25, 1794 and directed Alcalde Antonio José Ortiz to put the grantees in possession of the land.[13] On November 26, 1794 Alcalde Ortiz brought the fifty-two petitioners to El Vado (today’s San Miguel del Bado), and performed the traditional ceremonies of delivery of possession to the grantees, though he did not allot specific tracts of land at that time. The list of individual petitioners attached to the petition has been lost, as was often the case, so other than Lorenzo Marquez, we do not know who the grantees of the San Miguel del Bado grant were. The alcalde notified the grantees of five conditions, that had to be followed:

“First. That the tract aforesaid has to be in common, not only in regard to themselves, but also to all the settlers who may join them in the future.

Second. That with respect to the dangers of the place, they shall have to keep themselves equipped with firearms, and bows and arrows, in which they shall be inspected, as well at the time of settling as at any time the alcalde in office may deem proper, provided that after two years settlement all the arms they have must be firearms, under the penalty that all who do not comply with this requirement shall be sent out of the settlement.

Third. That the plaza they may construct shall be according as expressed in their petition; and in the mean time they shall reside in the pueblo of Pecos, where there are sufficient accommodations for the aforesaid fifty-two families.

Fourth. That to the alcalde in office in said pueblo they shall set apart a small, separate piece of these lands for him to cultivate for himself at his will, without their children or successors making any objection thereto; and the same for his successor in office.

Fifth. That the construction of their plaza, as well as the opening of acequias, and all other work that may be deemed proper for the common welfare, shall be performed by the community with that union which in their government they must preserve.”[14]

These conditions make it clear that the San Miguel del Bado Grant was intended to be a community grant with a defensive plaza at San Miguel del Bado. All members of the community were required to have firearms within two years, under pain of banishment, though there is no evidence of settlers being ejected from the community because they lacked firearms. Finally, as a means of compensating the alcalde for his services, he was to receive a small tract of land which he could cultivate for himself and which would pass to the next alcalde when the first alcalde retired, but would not pass to the heirs of the first alcalde.[15] Other than the last mentioned condition, these were standard conditions included in many of the land grants of this period.[16] Finally, Alcalde Ortiz notified the grantees of the boundaries, indicating that the pastures and watering places were to be held in common, and performed the traditional ceremony followed in all Spanish and Mexican land grants, whereby title passed from the king to the grantees. Alcalde Ortiz “led them over said lands, and they plucked up grass, cast stones, and shouted ‘Long live the king!’ taking possession of said land quietly and peaceably, without any objection.”[17] It is likely that the grantees started farming, digging acequias and building their houses as soon as the grant was made if not before, but formal allotments of land were not made until 1803.

On March 12 1803, seven years after the grant was made Pedro Bautista Pino, an official of the cabildo of Santa Fe, traveled to San Miguel del Bado to distribute “the lands under cultivation to all the individuals who occupy said settlement.” Pino, whose family would become heavily involved in land speculation in the Pecos/San Miguel del Bado area,[18] measured the cultivated lands from north to south and attempted to divide them equally between the fifty-eight families then living in the community. Pino had the settlers draw lots to determine the amount of land each would get. Because of the numerous ancones or bends in the river it was impossible to make the division in strict equality. Most received 50 or 65 varas, a few received between 100 and 150 varas, and Juan José Sandoval received 230 varas. This may have been the tract set aside in the granting decree for the current alcalde. Additional irrigated land was set aside to be worked in common, the products of which were “to be applied annually to the payment of three masses for the benefit of the blessed souls in purgatory.”[19] The allotted lands stretched from “a hill situated at the edge of the river above the mouth of the ditch which irrigates said lands [on the north], and on the south the point of the hill of the pueblo and the valley called Temporales.” A large amount of irrigable land remained to the south, to be distributed to new settlers with the consent of the alcalde. After the allotments at San Miguel, Alcalde Ortiz gathered the settlers together and told them they must “erect mounds of stone on their boundaries,” and they could not sell their allotted tracts for ten years from that date. [20] Two days later, Pedro Bautista Pino made additional allotments of land to forty-five men and two women at the community of San José del Bado, two miles upstream from San Miguel. The procedures and conditions were similar to those at San Miguel del Vado. On March 30, 1803 Governor Fernando Chacón approved the allotments of land made at San José del Bado. [21]

In his 1812 book The Exposition on the Province of New Mexico, Pedro Bautista Pino singled out the experience of these two distributions of land, one at San Miguel del Bado the other at San José del Bado, for special mention. He recalled that “during the administration of Señor Chacón, I was commissioned to found at El Vado de[l Rio] Pecos two settlements, and to distribute lands to more than 200 families [an exaggeration since there were about 105 families in the two settlements]. After I concluded this operation, and upon taking leave of them (having refused the fee they were going to give me for my labor), my heart, at that moment as never before, was overcome with joy. Parents and little children surrounded me, all of them expressing, even to the point of tears, their gratitude to me for having given them lands for their subsistence.”[22]

The settlers and the government both knew that the lands the settlers would depend upon for their subsistence consisted not only of the allotted lands measured by Pedro Bautista Pino in 1803, but also the common lands described by Antonio José Ortiz in his act of possession and by Governor Fernando Chacón in his grant in 1794. The settlers knew this because they relied on the common lands for grazing their livestock and their flocks of sheep and the officials knew this because they needed these frontier settlements to protect other central New Mexico settlements including Santa Fe. The only way the settlers could survive was to have all the resources required for subsistence, while they waged defensive war against raiding nomadic Comanche, Apache and other Indians.[23]

Settlement on the San Miguel del Bado Grant

In addition to San Miguel del Bado and San José del Bado, several other settlements grew up on the San Miguel del Bado grant in the early decades of the nineteenth century. The village of Villanueva was initially called La Cuesta and though it was founded after San Miguel and San José it soon surpassed those villages in the number of baptism of children from the village as listed in the Pecos baptism books.[24] The village of La Cuesta was named after the landmark describing the eastern boundary of the San Miguel del Bado grant: “on the east La Cuesta and Los Cerritos de Bernal.”[25] La Cuesta is said to have been founded in 1808 the first appearance of a baptism from La Cuesta in the Pecos baptismal books was in 1819. By 1835 La Cuesta had surpassed San Miguel and San José in the number of baptisms recorded.[26]

La Cuesta, along with El Cerrito, was the furthest village away from the political and military center of San Miguel and therefore the settlers there had to rely primarily on themselves for protection against Plains Indian attacks. La Cuesta was, like Abiquiú, Las Trampas and Truchas, a buffer community on the frontier acting as the first line of defense against Indian raids. Like the other communities in the area, it was a place where trade with Plains Indians took place, often trade in captives or Genízaros. In the period between 1810 and 1828 four Indian captives were baptized from La Cuesta.[27]

By 1835 La Cuesta had surpassed San Miguel and San José in the number of baptisms recorded with 41 for La Cuesta, 34 for San Miguel and 35 for San José. This trend continued for the next four years except 1836 when San Miguel exceeded Cuesta in the number of baptisms (San Miguel 31, Cuesta 23, total 161). Other communities in the 1836 baptisms include: Puertecito [Sena], El Pueblo, El Cerrito, Antón Chico, El Gusano, Las Mulas, Garambullo, Rio de la Baca, La Entranosa, Pecos, Cañon de Pecos, Los Trigos.[28] The map on page 440 of Kiva, Cross, and Crown by John Kessell shows the location of most of these communities strung along the Pecos River from El Cerrito on the south to Cañon de Pecos on the north, well within the Pecos League.

1836, the year before the remaining Pecos Pueblo Indians moved to Jemez, is the last year baptisms were recorded for inhabitants from Pecos Pueblo (two) and Cañon de Pecos also recorded two baptisms. As the Pecos Pueblo members moved to Jemez, a few remained in the area. In 1849 a Pecos Indian at Jemez named “Hosta” identified as the governor of Pecos told Lieutenant James H. Simpson that of the remaining eighteen Pecos Indians fifteen were living at Jemez, one was at Cañon de Pecos, one at Santo Domingo, and one at La Cuesta. The inclusion of a Pecos Indian living at La Cuesta in 1849 shows the diverse nature of the community and probably indicates its greater preparedness for frontier defense.[29] The La Cuesta church was built around 1831 made of native stone. The church, dedicated to Our Lady of Guadalupe, still stands today.[30]

As La Cuesta (Villanueva) grew it became the stepping-stone of the settlements of Antón Chico and El Cerrito. In 1822 the petition of Salvador Tapia and 36 others for the Anton Chico grant was approved and between 1824 and 1827 El Cerrito was settled with several residents of La Cuesta. El Cerrito continued as a community while Antón Chico was abandoned in 1827 and resettled in 1834.[31]The Sandoval Case and the Adjudication of the San Miguel del Bado grant

The story of the settlement of the communities within the San Miguel del Bado grant contains the seeds of a tragic loss, the loss of all the common lands. Adjudication of the San Miguel del Bado grant would result in shrinking of the grant from approximately 315,000 acres to 5,207 acres. The difference between these two figures is a little less than 310,000 acres; the acreage of the common lands lost to the San Miguel del Bado Grant because of the U.S. Supreme Court decision of U.S. v. Sandoval. The issue before the U.S. Supreme Court in the 1897 Sandoval case was who owned the common lands of a community land grant: the community or the government.

Adjudication of the San Miguel del Bado Grant was complicated by the fact that several theories of ownership of the grant were put forth during the course of the adjudication. In addition multiple claimants were involved during the period from 1857 when the first petition was filed, until 1897 when U.S. v. Sandoval was decided. Speculators that included Surveyor General Henry Atkinson, held the view that the entire grant was owned by Lorenzo Marquez and his heirs; thus if someone like Henry Atkinson received a deed from the heirs of Lorenzo Marquez he would own the entire grant.[32]

The second theory was ownership of the entire grant (both private and common lands), by the inhabitants of the grant. The third theory was ownership of the private lands by the occupants of the grant and ownership of the common lands by the U.S. government as successor to the governments of Spain and Mexico. It was the third theory that prevailed.

The first petition in the adjudication of the San Miguel del Bado grant asserted the second theory of ownership; unfortunately the theory was asserted in a claim made to Surveyor General Henry M. Atkinson who believed in the first theory of ownership because it was in his interest as a land speculator.[33] Faustín Baca y Ortiz, the Justice of the Peace of San Miguel del Vado, filed the first petition on March 18, 1857, in the name of the inhabitants of the settlements of La Cuesta, San Miguel, Las Mulas, El Pueblo, Puertecito, San José, Guzano, and Bernal, seeking the confirmation of the San Miguel del Vado Grant before the Surveyor General.[34] On November 13, 1879, Surveyor General Atkinson made his report to Congress, noting that while the grant had been requested by and issued to Lorenzo Marquez for himself and his fifty-one associates, the names of these associates were not listed in any of the grant papers. Atkinson contended that the law was clear that title could vest only in persons who either had been named or so clearly described as to leave no question as to who they were. Therefore, he recommended that the grant be confirmed to the heirs, legal representatives and assigns of Lorenzo Marquez.[35] A preliminary survey of this claim was made in November and December 1879, by Deputy Surveyor John Shaw, showing the grant to contain 315,300.80 acres.

Surveyor General George W. Julian reinvestigated the claim and in a supplemental report dated December 6, 1886, recommended the confirmation of the grant to the heirs, legal representatives and assigns of Lorenzo Marquez for themselves and in trust for the heirs and legal representatives of the other grantees referred to in the grant papers.[36] The Commissioner of the General Land Office advised Secretary of Interior L. Q. C. Lamar on May 13, 1887 that he believed the survey was grossly in excess of the quantity of land that originally had been granted. He therefore recommended that if Congress confirmed the claim it be limited to the land actually occupied by the inhabitants of the grant. Notwithstanding all of these proceedings, no action was taken by Congress in reference to the San Miguel del Bado grant during the 1870s and 1880s.”[37]

After the Court of Private Land claims was established in 1891, three suits were filed seeking the recognition of three conflicting claims to the San Miguel del Bado grant. The first was filed on August 2, 1892, by Julian Sandoval, Gregorio Roybal, Angel Dimas, Catarino Sena, Thomas Gonzales, Juan Gallegos and Ramon Gallegos, on their own behalf and as agents for the residents and settlers upon the grant for confirmation of their claim to the lands covered by the grant.[38] The second suit was filed on January 16, 1893, by Levi P. Morton, who claimed to be the owner of the grant by virtue of conveyances from the heirs of Lorenzo Marquez.[39] Morton was, according to Mark Schiller, “an enormously successful businessman and an equally successful politician. Morton had been elected to Congress from New York in 1877 and subsequently served as United States ambassador to France from 1881-1885, Vice President of the United States during the Harrison administration (1889-1893), and governor of New York from 1895-1896 . . . Morton’s interest in the grant stemmed primarily from the fact that the Atchison, Topeka and Santa Fe Railroad Company . . . was building their main line directly through the grant and Morton’s investment company, Morton, Bliss and Company, had a history of investing in western railroads that dated back to 1870.”[40]

The third suit was filed on March 2, 1893, by Juan Marquez and Sylvester Marquez for themselves and the other heirs and legal representatives of Lorenzo Marquez for the recognition of their claim to the grant. Both Morton and Juan and Sylvester Marquez claimed that Lorenzo Marquez took title to the entire grant because the other fifty-one grantees were not named in the testimonio. The possibility that the U.S. government might own the common lands of the San Miguel del Bado grant was raised in the Court of Private Land Claims by Mathew Reynolds in his response to the petition by Julian Sandoval et al. Reynolds interpreted the grant documents as conveying title to the allotted lands only and cited several works on Spanish law to that effect.

The three cases were consolidated for purposes of trial since all three claims covered the same lands and were based on the same grant.”[41] When “the consolidated case came up for trial on April 18, 1894, the government recognized the validity of the grant papers but denied that it grant covered any lands which had not been allocated prior to 1846. A majority of the court rejected this contention, and held that the distribution of the individual tracts in 1803 clarified the identity of the grantees. The court dismissed the suits filed by Levi Morton and Juan and Sylvester Marquez and confirmed title to the entire grant in the name of Lorenzo Marquez and his co-petitioners and all other persons who had settled upon the grant prior to December 30, 1848.[42] The U.S. government appealed the decision to the United States Supreme Court which reversed the Court of Private Land Claims and held that title to the unallocated lands within the exterior boundaries of the grant passed to the United States under the Treaty of Guadalupe Hidalgo. The Supreme Court then ordered the Court of Private Land Claims to determine the extent of the allocated lands and confirm title in the grant only to the extent of those occupied allocated lands.[43]

The decision in U.S. v. Sandoval

The theory of Matthew Reynolds and of the U.S. Supreme Court upon which the Sandoval decision was based was that the Spanish — and then the Mexican — government owned the common lands, so the United States (and not the heirs of the San Miguel del Bado grant) inherited that ownership as successor sovereign. The question of the ownership of the common lands has both legal and historical implications. Because the Supreme Court decided this question without the necessary historical facts and Spanish legal authority before it, a legal and historical distortion resulted, which historians like Ralph Emerson Twitchell have perpetuated by quoting these and other similar cases in their writings about Hispanic land tenure, instead of engaging in independent research on the ownership of the common lands of a community land grant.[44]

Such research would have revealed the history of the Castilian land-owning pueblo that took root in New Mexico,[45] a history of which the Supreme Court was not made aware. The lands owned by the Castilian pueblo were generally distinguished from the lands owned by the king. Crown lands that had not been granted to individuals or communities were called tierras realengas or tierras baldías. In sixteenth-century Castile, the monarchs followed a policy of protecting the lands of the pueblos — the tierras concegiles. Numerous laws were enacted to safeguard the tierras concegiles from usurpation by the nobility, by municipal officials, or by ordinary citizens.[46]

The common lands of a New Mexican community land grant were like the tierras concegiles in Spain. While both the tierras baldías and the tierras concegiles fell into the broad classification of public domain, civil law countries like Spain had two classes of public domain: the public domain proper, which was owned by the sovereign, and the private domain, which was owned by communities and municipalities. The former was the tierras baldías and the latter was the tierras concegiles. The importance of this distinction is that under international law, which the Land Claims Court was supposed to follow, the public domain passed to a successor state when there was a change of sovereignty (as when New Mexico was occupied by the United States), but the private domain was retained by the communities and municipalities just as private property of individuals was retained by its owners.[47] This well-established rule could have disposed of the question of ownership of the common lands of the San Joaquín del Bado and other community land grants. But it was overlooked, both by the lawyers and by the judges charged with deciding the important question of common land ownership.

Also overlooked by the judges were three types of Spanish law germane to this issue: codified law, commentaries on codified law, and Spanish custom. The foremost Spanish law code, which was still in effect at the time of the United States invasion of New Mexico, was Las Siete Partidas. Partida 3, título 28, ley 9, spells out the ownership of pueblo lands by the community: “[the things which] belong separately to the commons of cities or towns are . . . the exidos, . . . forests, and pastures, and all other similar places which have been established and granted for the common use of each city or town.”[48]

The Recopilación de Leyes de Reynos de las Indias dealt with the procedural problems of forming settlements in the Americas but had little to say about the substantive law concerning ownership of property; these matters were covered in earlier codes like Las Siete Partidas, which the Recopilación specifically made applicable to the Americas.[49] The Mexican Colonization Law of 1824 and the regulations issued under that law in 1828 were the first comprehensive legislation regarding New Mexico land grants. Article 2 of the 1824 law recognized the traditional ownership of the common lands by the pueblo (or land grant) when it stated: "the object of this law is those lands of the nation, not being private property nor belonging to any corporation or pueblo, and can [therefore] be colonized" [emphasis added].[50]

There were numerous Spanish law codes, but none was truly comprehensive. Instead of providing that later ones would supersede earlier ones, Spanish officials allowed them to overlap and duplicate one another. For this reason it was necessary for legal scholars to synthesize and summarize the authorities on various points of law. The works of Mariano Galván-Rivera are often cited and he is considered one of the leading authorities in the field of land and water law. Galván-Rivera's primary work, Tierras y Aguas, which was attached as an appendix to Escriche's authoritative Diccionario Razonado de Legislación y Jurisprudencia, aptly summarizes the situation regarding the ownership of the common lands of a community land grant: “they [the kings] had to cede to the settlements of America and to their councils . . . a certain portion of lands which they could use for their subsistence and betterment, making use of the pastures and farming lands . . . These lands they immediately named according to their kind, ownership, and use: concegiles or propios.”[51]

The third type of Hispanic law, custom and usage, is the most important for New Mexico. Since there were few law books or lawyers in New Mexico prior to American occupation, disputes about land ownership were settled in traditional ways, which were considered binding and accepted by all sides.[52] Though falling under the classification of customary law, this litigation was usually written down and was characterized by a formality somewhat amazing considering the frontier setting in which it took place. The parties were often adept at the use of persuasive techniques and legal procedures generally reserved to trained lawyers.[53]

After studying New Mexico's community land grants, Daniel Tyler came to the conclusion that: "the ejido (common lands) belonged to the community to which it was appurtenant." In two of the grants he studied, the alcalde promised the settlers a title to their ejidos, leaving no doubt that these common lands were owned by the community.[54] Moreover, other community land grant documents show that when the private tracts were transferred to the individual grantees, this land carried with it the right to use the common lands. Hispanic settlers received title to their house lots and farmlands as individuals and title to the common lands as a group (de mancomún).[55] This connection between the private tracts and the common lands is seen in the granting decree for the Las Trampas grant where title to the grant was transferred "to all in common and to each one in particular, in their private lands and the rest which is attached [to the private tracts]."[56] Then when the individual tracts were distributed, the settlers received their private land together "with corresponding water, pastures, and watering places."[57]

Later Adjudication and Survey of the San Miguel del Bado grant

As we examine the U.S. Government surveys in the aftermath of Sandoval, which determined what was left of the San Miguel del Bado grant we find that, instead of containing 315,300 acres the grant was held to contain 5,207 acres. On December 12, 1900, Clayton G. Coleman was appointed as a Special Commissioner ascertain the boundaries of the allotted lands. Coleman reported that there were approximately 5,000 residents living on the grant, and that the allocated lands, owned by 747 claimants, were located in ten tracts and covered a total area of approximately 3,539 acres. This was several thousand acres short of the final survey of the San Miguel del Bado grant. The court approved Coleman’s report and ordered the grant surveyed in accordance with Coleman’s findings. The grant was surveyed by Deputy Surveyor Wendell V. Hall in 1903. Hall’s survey showed that the ten tracts contained the following acreage:

 

Tract No.

Acreage

1

177.65

2

3,570.02

3

141.43

4

205.24

5

185.61

6

225.65

7

555.26

8

6.94

9

14.26

10

125.67

Total

5,207.73

The map at Figure 3 shows the location of these ten tracts.

On January 6, 1910, the United States issued a patent to Roman Gallegos and Francisco R. Martinez, the president and secretary of the Board of Grant Commissioners of the San Miguel del Bado Grant, for the ten tracts described in the Hall Survey.[58] Over fifty years later, in 1967 the Board of Trustees of the San Miguel del Bado grant transferred several tracts of land within tract 2 of the Wendell Hall Survey to the State of New Mexico in order to establish the core of Villanueva State park, two miles east of the village of Villanueva. Later the State Park and Recreation Commission acquired additional acreage from the land grant board to the State of New Mexico provides that the land must be used as a state park or the land will revert back to the San Miguel del Bado grant. Thus the San Miguel del Bado grant whittled down from 315,300 acres to a little over 5,000 acres by an unfair U.S. Supreme Court decision, was still able to contribute land that formed the core of one of the most popular state parks in New Mexico.[59]

 

Figure 1. San Miguel del Bado Grant, based on John Shaw Survey of 1879.

Figure 2. San Miguel del Bado grant allotments, 1903 Hall survey.

 


 

[1] The research and writing of this land grant summary was partially funded by a grant from the New Mexico Historical Records Advisory Board.

[2] For further discussion see, Ebright and Hendricks, The Witches of Abiquiú: The Governor, the Priest, the Genízaro Indians, and the Devil (Albuquerque: University of New Mexico Press, 2006), 277, note 35 and Pekka Hämäläinen, The Comanche Empire (New Haven: Yale University Press, 2008), 8 and n. 35, 277.

[3] For PecosValley, the population figures for Spaniards and Pecos Pueblo Indians are:
Year Spaniards Pecos Indians
1776 ---- 269
1799 178 118
1804 437 125
Frances Levine, Our Prayers Are in This Place: Pecos Pueblo Identity Over the Centuries, (Albuquerque: University of New Mexico Press, 1999), 44.

For Taos, the population figures for Spaniards and Taos Pueblo Indians are:
Year Spaniards Taos Indians
1776 306 427
1793 403 518
1799 1351 531
Harold H. Dunham, “Spanish and Mexican Land Policies in the Taos Pueblo Region, New Mexico,” in Pueblo Indians I (New York & London: Garland Publishing Inc., 1974), 185, 196.

[4] “In 1792, Lorenzo Márquez, the original petitioner for the neighboring El Vado land grant, was padrino at one of the two baptisms at Pecos for the year. In 1793 padrinos at four of the five baptisms at Pecos Pueblo were El Vado settlers names on the 1803 list of settlers. Lorenzo Marquez was a padrino in three of these,” Levine, Our Prayers Are in This Place, 87. The mission center was moved from Pecos to San Miguel del Bado prior to 1818, due to the “expertly prepared petition of Comanche genízaro José Cristóbal Guerrero,” Levine, Our Prayers Are in This Place, 95. The documents use both “El Vado” and “El Bado.” I have used El Bado, unless quoting a document, because the Board of Trustees of the grant have consistently used San Miguel del Bado Grant in their deeds and other documents. Malcolm Ebright, and Rick Hendricks, The Witches of Abiquiú, 76-77.

[5] Marquez and one of his co-grantees Domingo Padilla, “show up in the 1780s in the Pecos books as godfathers and marriage witnesses. Kessell, Kiva, Cross, and Crown, 418.

[6] “La mucha escases de agua que hay y la muche dumbre de gente que todos no podemos tener el gose de ella.” Petition of Lorenzo Marquez et al. for the San Miguel del Bado Grant, SG 119, Roll 24, fr. 599 (Spanish original), 664-65 (translation).

[7] Petition of Lorenzo Marquez et al. for the San Miguel del Bado Grant, SG 119, Roll 24, fr. 599 (Spanish original), 664-65 (translation).

[8] Ebright and Hendricks, The Witches of Abiquiú, 30.

[9] Fray Angelico Chavez, Archives of the Archdiocese of Santa Fe, 1678-1900 (Academy of American Franciscan History: Washington D.C., 1951), 205.

[10] Although some legal forms were found in the law books available in New Mexico during this period, no land grant form has been found. Joseph W. McKnight, “Law Books on the Hispanic Frontier,” in Malcolm Ebright ed., Spanish and Mexican Land Grants and the Law (Manhattan, Kansas: Sunflower University Press, 1989), 80.

[11] Por el norte el Rio de la Baca, desde [h]aonde llamada la Rancheria hasta el Agua Caliente, por el sur, el cañon blanco, por el oriente la cuesta con los Cerritos del Bernal, y por el poniente el paraje que comunmente llaman el Gusano. Petition of Lorenzo Marquez, et al for the San Miguel del Bado grant, November 1794, San Miguel del Bado grant, SG 119, Roll 24, fr. 599 (Spanish original), 627 (translation).

[12] Conformas a una prometemos el amurallarnos en una plaza bien fortificada con baluarteles y torreones, para todos quantos en la provincía haiga desacomodados. Petition of Lorenzo Marquez, et al for the San Miguel del Bado grant, November 1794, San Miguel del Bado grant, SG 119, Roll 24, fr. 599 (Spanish original), 627 (translation).

[13] Grant by Governor Fernando Chacón, November 26, 1794, San Miguel del Bado grant, SG 119, Roll 24, fr 600 (Spanish original), 628 (translation).

[14] Primera: Que el paraje prefijado ha de ser comun, no solo a ellos, sino a todos los vecinos que se puedan ir congregando en lo subscribo; Segunda: Que respecto a lo arriesgado del paraje, deberan mantenerse equipados de armas de fuego, y flechas de lo que se les a de pasar muestra tanto en su entrada como en cualquier tiempo que lo tuviere por comveniente el alcalde que los mande, entendidos que pasados dos años de la posecion, todas las armas que tengan deberan ser precisamiente de fuego, bajo la pena de que los que no lo ejecutaren seran despedidos de dicha población; Tercera: que la plaza que fabriquen a de ser en los terminos que expresan en su solicitud, y en el interin deberan situarse en el Puéblo de Pecos, donde hay suficiente alojamiento para que se alberquen las sitadas cincuenta y dos familias; Quarta: que el alcalde que mandare en dicho Pueblo se le han de señalar por separado una corta porción de estas tierras para que las siembre por si a su arbitrio, sin que puedan objetar a ella sus hijos, ni subsesores y si en (en) su lugar el que lo sostituya; Quinta: que assi la maniobra de su plaza como sacas de acequias y todas quantas maniobras se les ofrescan hacer para su bien comun, las han de ejecutar todos de mancomun con la union que [roto] observar y habiendo vido. Act of possession by Alcalde Antonio José Ortiz, San Miguel del Bado grant, November 26, 1794, SG 119, Roll 24, fr. 600 (Spanish original), 627-28 (translation).

[15] Condition four San Miguel del Bado grant, November 26, 1794, SG 119, Roll 24, fr. 601 (Spanish original), 628 (translation).

[16] For a grant with similar conditions, see the Arroyo Hondo grant, SG 159, Roll 29, fr. 197 et seq., excerpt from the Act of Possession of Pedro Martín, April 10, 1815: That said tract has to be in common not only among themselves but also among all others who may join them in the future; that with respect to the danger at the place, they shall have to keep themselves equipped with fire arms lances, with which they shall pass review at the beginning or at any time deemed proper by the alcalde in charge, it being understood that all the arms they may have shall be firearms, with the penalty that all who do not comply shall be ordered out of town; that the public square they may make be according as proposed in their petition . . .”

[17] Los friasee por dichas tierras, arrancaron sacate, tiraron piedras y dieron voces diciendo viva el rey, tomando posesion de dichas tierras quieta y pacificamente sin contradicion alguna. Act of Possession by Alcalde Antonio José Ortiz, [San Miguel] del Bado grant, November 26, 1794, SG 119, Roll 24, fr. 600 (Spanish original), 608-616 (transcription) fr. 627-28 (translation).

[18] G. Emlen Hall, “Juan Estevan Pino, ‘se les coma’: New Mexico Land Speculation in the 1820s” NMHR 57 (January 1982).

[19] Allotment of lands by Pedro Bautista Pino, San Miguel del Bado, March 12, 1803, [San Miguel] del Bado grant, November 26, 1794, SG 119, Roll 24, fr. 603-607 (Spanish original), 630-33 (translation).

[20] Allotment of lands by Pedro Bautista Pino, San Miguel del Bado, March 12, 1803, [San Miguel] del Bado grant, November 26, 1794, SG 119, Roll 24, fr. 603-7 (Spanish original), fr. 630-33 (translation).

[21] Allotment of lands at San José del Bado, March 14, 1803, and Approval by Governor Fernando Chacón, SANM I: 887.

[22] Don Pedro Baptista Pino, The Exposition on the Province of New Mexico, 1812, Adrian Bustamante and Marc Simmons, eds. and trans. (Santa Fe and Albuquerque: El Rancho de las Golondrinas and the University of New Mexico Press, 1995) p. 7, n. 2, translation; p. 5-6, n. 2, Spanish facsimile.

[23] For more on Plains Indian raids on Spanish settlements see Ebright and Hendricks, TheWitches of Abiquiú, 75-85.

[24] Archives of the Archidiocese of Santa Fe, books B-19 (Box 22) and B-20 (Box 22).

[25] Petition of Lorenzo Marquez, et al for the San Miguel del Bado grant, November 1794, San Miguel del Bado grant, SG 119, Roll 24, fr. 599 (Spanish original), 627 (translation).

[26] Robert Julyan, The Place Names of New Mexico (Albuquerque: University of New Mexico Press, 1996), 373 and T. M. Pearce, ed. New Mexico Place Names: A Geographical Dictionary (Albuquerque: University of New Mexico Press, 1965), 176.

[27] Levine, Our Prayers Are in This Place, 105.

[28] Levine, Our Prayers Are in This Place, 145.

[29] James H. Simpson, Journal of a Military Reconnaissance from Santa Fé, New Mexico, to the Navajo Country (Philadelphia: Lippincott, Grambo, and Company, 1852); Levine, Our Prayers Are in This Place, 115.

[30] The license for the building of the La Cuesta (then called La Cuesta del Vado) church was issued May 18, 1831. Fray Angélico Chavez, Archives of the Archdiocese of Santa Fe, 1678-1900 (Washington, D.C.: Academy of American Franciscan History: 1957), 140.

[31] Richard Nostrand, El Cerrito, New Mexico: Eight Generations in a SpanishVillage (Norman: University of Oklahoma Press, 2003), 21.

[32] This is what Atkinson did in 1883 in the case of the Anton Chico grant when he ruled that the grant, made to Manuel Rivera and thirty-six unnamed others was owned solely by Manuel Rivera even as he has purchased the interests of Manuel Rivera. Ownership by one person was the first theory of ownership of the San Miguel del Bado grant. Ebright, Land Grants and Lawsuits, 41-2.

[33] The three theories of ownership asserted in the San Miguel del Bado adjudication are similar to the theories set forth in the Las Vegas grant adjudication. Ebright, Land Grants and Lawsuits, 209.

[34] Petition of Justice of the Peace Faustín Baca y Ortiz for confirmation of the San Miguel del Bado Grant, March 18, 1857, San Miguel del Bado Grant. SG 119, Roll 24, fr. 618-19.

[35] Opinion by Surveyor General Atkinson, San Miguel del Bado grant, November 13, 1879, SG 119, Roll 24, fr. 652-57. For Atkinson’s ownership of the grant see letter from Breedin to George W. Julian, Las Vegas, December 10, 1886. San Miguel del Bado Grant, SG 119, Roll 24, fr. 737.

[36] Opinion of Surveyor General Julian, San Miguel del Bado grant, SG 119, Roll 24, fr. 674-79.

[37] J. J. Bowden, “Private Land Claims in the Southwest,” 3: 740.

[38] Petition of Julian Sandoval, et al, August 2 1893, San Miguel del Bado grant, PLC 2, Roll 35, fr. 656-62; Bowden, “Private Land Claims,” 3: 741-42.

[39] Petition by Levi Morton, January 16, 1893, San Miguel del Bado Grant, PLC 60, Roll 40, frames 7-9; Bowden, “Private Land Claims,” 3: 741-42.

[40] Mark Schiller, “The Adjudication of the San Miguel del Vado Grant and the Overturning of the Presumption that Title to the Commons Vested in the Settlers,” a chapter in “Adjudicating Empire” unpublished manuscript in possession of the author. For a study of Morton’s investment company see Dolores Breitman Greenberg, Financiers and the Railroads 1869-1889: A Case Study of Morton, Bliss and Co., Masters Thesis, Department of History, CornellUniversity, 1972 cited by Schiller.

[41] Petition of Juan and Sylvester Marquez, March 2, 1893, San Miguel del Bado Grant, PLC 198, Roll 51, fr. 519-21; Bowden, “Private Land Claims,” 3: 741-42.

[42] Bowden, “Private Land Claims,” 3: 741-42; Mark Schiller, “The Adjudication of the San Miguel del Vado Grant and the Overturning of the Presumption that Title to the Commons Vested in the Settlers,” unpublished manuscript, 20-27.

[43]U.S. v. Sandoval, 167 US 278 (1897); Bowden, “Private Land Claims,” 3: 741-42.

[44] Twitchell’s discussion of the ownership of property in a villa or other settlement in the nature of a community grant paraphrases or quotes at length (without quotation marks) from United States v. Santa Fe, 165 U.S. 675, 683 ff. (1897), which in turn is quoted in United States v. Sandoval, pp. 295-97; Ralph Emerson Twitchell, Old Santa Fe (1925; reprint ed., Chicago: The Rio Grande Press, 1963), pp. 37-38.

[45] Vassberg, “The Tierras Baldías,” p. 400. The distinction between the tierras baldías and the tierras concegiles was not always clear in practice. Because of this, sixteenth-century Castilian monarchs were sometimes able to exact pay-ment from municipalities for land used by them. Presumably, however, the tierras concegiles that had been granted to a municipality were exempt from such payments. Vassberg, “The Sale of Tierras Baldías in Sixteenth-century Castile,” Journal of Modern History 47 (December 1975); 631-33, 637-38.

[46] David E. Vassberg, “The Spanish Background: Problems Concerning Ownership, Usurpations, and Defense of Common Lands in 16th Century Castile,” in Malcolm Ebright, ed., Spanish and Mexican Land Grants and the Law (Manhattan, Kansas: Sunflower University Press, 1989), and Vassberg, “Tierras Baldías,” p. 400.

[47] John L. Walker, “The Treatment of Private Property in International Law After State Succession,” pp. 65-68, 74, in “Land, Law and La Raza” (A collection of papers presented for Professor Theodore Parnall’s seminar in comparative law, UNM School of Law, Fall Semester, 1972), and Daniel Patrick O’Connell, State Succession in Municipal Law and International Law, 2 vols. (London: Cambridge University Press, 1967), 1: 200.

[48] Apartadamente son del comun de cada una Ciudad o Villa. . . ejidos. . . los montes, e las dehesas, e todos los otros lugares semejantes destos, que son establecidos, e otorgados para pro comunal de cada Ciudad, o Villa. Las Siete Partidas del sabio rey don Alfonso el X, glosadas por el lic. Gregorio Lopez, 4 vols. (Madrid: Oficina de d. Leon Amarita, 1829-1831), and Samuel Parsons Scott, trans. Las Siete Partidas (Chicago: Commerce Clearing House, 1931).

[49] Recopilación, Libro 2: título 1, ley 2.

[50] Son objeto de esta ley aquellos terrenos de la nación, que no siendo de propiedad particular, ni pertenecientes a corporación alguna ó pueblo, pueden ser colonizados. Decreto del 18 de Agosto de 1824, sobre colonization, Manuel Dublán and José María Lozano, Legislación Mexicana, 19 vols. (Mexico: Imprenta del Comercio, 1876-1890) 1: 712, translated in Frederic Hall, The Laws of Mexico (San Francisco: A. L. Bancroft, 1885), p. 148.

[51] “. . . tuvieron por bien SS. MM. ceder á las poblaciones de América y á los concejos de ellas, . . . cierta porcion de terrenos, para que acudiesen á su subsistancia y mejoramiento, usufructuándolas en pastos y labores, . . . Estos terrenos se denominaron inmediatamente conforme á sus clases, pertenencia y usos, concejiles ó de propios.” Mariano Galván-Rivera, Ordenanzas de Tierras y Aguas . . . Dictadas Sobre la Materia y Vigentes Hasta el Dia en la Republica Mejicana, published as a supplement to Joaquín Escriche’s Diccionario Razonado de Legislación y Jurisprudencia (Paris: Librería Rosa y Bouret, [1863]), p. 187.

[52] Simmons, Spanish Government in New Mexico (Albuquerque: University of New Mexico Press, 1968; 1990), pp. 176-77; see also, chapter 2, Ebright, Land Grants and Lawsuits, “Lawsuits, Litigants, and Custom in Spanish and Mexican Period New Mexico.”

[53] For an example of such litigation see chapter 3, Ebright, Land Grants and Lawsuits, “Manuel Martínez’s Ditch Dispute,” 73-83.

[54] Las Huertas Grant, NMLG-SG, Roll 26, report 144, frame 8; Refugio Colony Grant, NMLG-SG, Roll 22, report 90; Daniel Tyler, “Ejido Lands in New Mexico,” in Malcolm Ebright, ed. Spanish and Mexican Land Grants and the Law (Manhattan, Kansas: Sunflower University Press, 1989), pp. 24-35.

[55]Tyler, “EjidoLands in New Mexico,” p. 26.

[56] “a todos juntos y en particular en su pertenencia y para lo demas anexo.” NMLG-SG, Roll 16, report 27, frames 259-62.

[57] “con sus aguas pastos y abrevaderos.” NMLG-SG, Roll 16, report 27, frames 259-62.

[58] Bowden, “Private Land Claims,” 3: 744.

[59] John V. Young, The State Parks of New Mexico, (Albuquerque: University of New Mexico Press, 1984), 151-53~.

 

Latitude: 3536
Longitude: 10543