by J. J. Bowden
Ignacio Elias, for himself, his sister Eulalia Elias, and a number of other ranchers petitioned the Treasurer General of Sonora, Nicolas Maria Gaxiola, on March 12, 1827, asking him to offer for sale a tract of vacant land lying between the Rancho of San Pedro and the place known as Tres Alamos. He stated that they needed the premises for stock raising purposes and would pay whatever was just as consideration for the land. Elias and his sister desired to purchase the vacant lands on the Babocomari Creek. Gaxiola, on July 1, 1827, ordered the Alcalde of Santa Cruz, Alejandro Franco, to survey, appraise and solicit bids for the purchase of the tract for a period of thirty days, and, upon the completion of such instructions, return the proceedings to him in order that the property might be sold at public auction pursuant to the Act of May 20, 1825.[1] Franco gave public notice on October 5, 1828 of his intention of surveying the requested tract. Thirteen days later he appointed Jose Maria Caballero as the surveyor and fixed the twentieth of the month as the date for the commencement of the survey. Upon his arrival at the marsh known as San Ignacio del Babocomari on the specified date, Franca appointed Lorenzo Mendoza, as tallyman, Andres Mendoza and Pablo Elias, as chainmen, and Antonio Campoy and Mauricio Neiro, as recorders, and commenced the survey of the requested tract. Beginning at a stone monument which he erected on a bald hillock in front of the marsh and designated as the central point, he ran a line “east northwest quarter east to west southwest quarter west” 100 cordeles of fifty varas each to a point where he erected a monument in a small valley in the vicinity of some bald hillocks. Here the survey party rested for the night. Early next morning they continued the line in the same direction. At a distance of 343 cordeles from the central point, the surveyors were forced to stop due to the roughness of the terrain and numerous deep ravines. They estimated that an additional 57 cordeles would take them to a hot spring at the foot of a bald hill in front of Santa Rita Mountain. They estimated that the northeast corner of the tract was located on a line “northwest quarter north northwest to southeast quarter south southwest” 60 cordeles from the hot spring and was located at a small cottonwood which stood in a small valley at the foot of Santa Rita Mountain. Next they estimated that its east corner was situated in the opposite direction from the hot spring “south southwest quarter southeast to northwest quarter northwest” 40 cordeles at several oaks situated on a hillock. Franco estimated that this portion of the tract contained four sitios of land. Returning to the central point, the survey party ran a line thence “west southeast to east northwest” 74 cordeles which terminated on the top of a hillock at the end of the water. They stopped here for the day due to darkness. The line was extended in the same direction on the following day an additional 326 cordeles to a monument erected on a rocky hillock above a number of pools of water fed by springs. A line was measured thence at a right angle to the northwest corner of the tract in a direction of “south southwest quarter southeast to north northwest quarter northwest” 40 cordeles to some small hillocks. A line was surveyed in the opposite direction from the monument on the rocky hillock 60 cordeles to the southwest corner of the tract, which was situated on the top of a high hill. Franco estimated that the western portion of the tract also covered four sitios He appointed Pablo Elias and Ramon Romero, as appraisers. On October 24, 1828, they appraised six of the eight sitios at 60 pesos each because they had permanent water. The value of the other two was set at 10 pesos apiece. Five days later Franco ordered the publication of public notice soliciting bids for the purchase of the premises commencing the following day. Each day between October 30 and November 28, 1828, the town crier of the Presidio of Santa Cruz notified the inhabitants of the proposed sale and asked any interested bidders to come forward. No offer was received, and Franco forwarded the proceedings to Gaxiola for his further action. Gaxiola, in turn, referred the matter to the Promoter Fiscal of Sonora, Felipe Gil, for an opinion on December 19, 1828. Gil replied that he knew of no reason why the tract could not be sold at public auction so long as it did not exceed the quantity which legally could be granted under Article 21 of the Act of May 20, 1828.[2] On December 20, 1828, Gaxiola ordered the Board of Sales to sell the land at public auction. The board offered the premises for sale on each of three consecutive days and, since no one offered to purchase it, sold it to Elias and his sister on the third, December 24, 1828, for the appraised value of 380 pesos. They paid the consideration on October 19, 1832 and final title papers were issued to them by Treasurer General Jose Maria Meridoza on December 28, 1832.
The heirs of Ignacio Elias and Eulalia Elias petitioned[3] the Surveyor General of Arizona, John Wasson, on February 26, 1875, seeking the confirmation of the grant. Two years later, E. P. Perrin purchased their interest from their attorney‑in‑fact, Domingo Elias Gonzales. Perrin petitioned Wasson on September 2, 1877 and requested the confirmation of the grant to him. Special Agent Rufus C. Hopkins examined the expediente of the grant in the archives at Hermosillo, Mexico, and reported:
The original expediente in this case, containing 44 papers, is found in the proper place in the archives; it is written upon stamped paper; the proceedings of valuation, publication, and sale of the tract described are all regular and the signature of the Treasurer General Jose Maria Mendoza, the officer who made the grant, is genuine and the many other signatures occurring in the proceedings have every appearance of being genuine and the whole expediente leaves unmistakable signs of genuine antiquity.
He also noted that the grant had been entered in the Toma de Razon which was kept in the Treasurer’s office. Based on Hopkins’ findings, Wasson, by decision[4] dated November 6, 1879, held that the grant was regular and valid but notwithstanding the fact that Perrin had filed a number of wills, powers of attorney, and conveyances, he failed to establish a chain of title connecting himself to the original grantees. Therefore, he recommended the confirmation of the claim to the Elias’ legal representatives.
On January 16, 1882, H. L. Muldoon, Chairman of the Committee of the House of Representatives on Private Land Claims, asked the Secretary of the Interior, S. J. Kirkland, for his opinion on the validity of the claim. The matter was referred to the Commissioner of the General Land Office, N. C. McFarland, who stated[5] that he could not concur with Wasson’s opinion, because there was no proof that the original grantees had any legal representatives and that, in their absence, the land would revert to the government. Therefore, he believed that the matter should he returned to the Surveyor General’s office, in order to give Perrin an opportunity to cure this defect. In response to McFarland’s opinion, Wasson wrote a Supplemental Report on April 7, 1882 in which he pointed out that this was the first claim reported to Congress by his office, and that his original opinion had been based on the instructions issued to the Surveyor General of New Mexico on August 21, 1854,[6] which provided that in cases where the Surveyor General was not satisfied with the deraignment of title to a grant, a recommendation for confirmation should be in favor of the legal representatives of the original grantee. He also noted that many New Mexican and California claims previously had been recommended for confirmation to the legal representatives of the original grantees, several claims had been so confirmed by Congress, and cases with such a recommendation had been before both the federal district and Supreme Courts and no one previously had questioned the procedure. Continuing, he pointed out that he had neither the power nor the authority to determine title questions. Therefore, he forwarded a copy of all the title data which Perrin had filed, and recommended the confirmation of the grant to him. A preliminary survey of the grant was made by Deputy Surveyor Solon N. Alles for 34,722.03 acres, or approximately eight square leagues.
In 1886, Commissioner of the General Land Office, William A. J. Sparks received a number of complaints from settlers, alleging that Perrin was attempting to drive them off the land which they had entered under the preemption and homestead laws. They also asserted that Perrin had blown up and burned their property, and the situation was on the verge of open warfare between the grant and the anti‑grant factions. In answer to Sparks’ letter, Surveyor General John Hise, in a letter dated April 8, 1886, stated that Perrin had obtained a Writ of Injunction, which was really one of ejectment, during the June, 1885 term of the Circuit Court of the First Judicial District of the Territory of Arizona in the case styled Robert Perrin v. G. H. Brook et al, and had caused the Sheriff of Cochise County to eject a number of settlers who had settled upon the grant in good faith, supposing it to be government land. Continuing, he stated:
Without wishing to intrude on your valuable time … I will simply say there are always two sides to questions of this character. The claimants are men of means, men of brains, and most of them having gone through conflicts of this character in California and other states, and are well posted, and are adept in the matters of land grant claims. What they do not know is not worth knowing, and having the financial backing to enlist the best lawyers of the nation on their side, they became a power that in the end will be hard to resist. That they are unscrupulous I will not say, but I will say that it appears to me that where land is the question … men will commit perjury and even disgrace wife and family to accomplish their purpose … Now, as to the settlers on the grant, they are not all saints, and I doubt if a majority of them are such. Pending this question of the grant, many efforts have been made to elicit information as regard the title of the claimants to this grant and hoped that the settlers could give me some clues to facts that would bear on the subject. My office has been visited from time to time by parties representing both sides and often resembled a police court. I have indulged this kind of proceedings, hoping that I might be able to glean from both sides information that would be valuable in getting at the main issue … So far I have gained no valuable information except as to what has been done by the claimants of the grant in their effort to get possession. This Mr. Waite, whose letter you enclosed to me, I have carefully tried to ascertain the facts in his case. I am not fully satisfied he resided on this land previous to the survey. Yet it was about that time, and as he says “We always understood the land we were on was a Mexican Grant of three leagues, the terms of which were never complied with,” is evidence that he was not particular as to ascertaining if there had been a survey or not. As to his residence on the land for the purpose of acquiring a homestead or pre‑emption though there is also a question. In a letter dated July 21, 1885 to Perrin, which is now before me, he says “I shall reside on my property once a month as the law requires. I would not have left it only you know I am insolvent. The word insolvent underscored as it is to me looks suspicious, and may mean that for a consideration he might be induced to cease his warfare. Again he says “I expect to go back on my ranch daily and shall go to stay.” By these statements of Mr. Waite I am inclined to the opinion that there is at least a question of his desiring to perfect a homestead or pre‑emption right on this land. In regard to destroying his house with dynamite, there is no doubt that the attempt was made end that it was partially successful. But there is no positive evidence that it was done by Perrin or his agents. Yet the presumption is that at least Perrin did not object to the destruction even if he was not an accessory.
The destruction of the frame building erected on the land claimed by Mr. Sullivan amounts to this. I sent for Mr. Sullivan and had an interview with him. As to his residence on the land previous to the survey, there is great doubt. When first questioned on this point, he said there never had been a survey to his knowledge, but when I told him there had been a survey he then fixed his residence on the land from 1879 … Whilst Mr. Perrin says he located there but a few years ago, built a cheap board structure and opened a saloon, keeping his men loitering about his premises drunk, and his saloon became a general nuisance and he did demolish it in self-defense and for the protection of his own family and hired help. This much for Mr. Sullivan. I have heard of no other cases of destruction of property by Mr. Perrin.
The complaint of Mrs. Florence A. Roth, whose letter I herewith transmit, deserves consideration. I have ascertained the following history of the case and have every reason to know that it is correct. Her father, M. K. Lurty, was taken to this alleged grant in the character of a sheep herder by E. M. Garry in 1875 and was employed in that capacity until Garry sold his claim to Perry. Whilst in the capacity of a herder, Mr. Garry allotted the land now claimed by Mrs. Roth to her father for cultivation on shares and he remained after Perrin took possession. Perrin claims to have had an understanding with her father that in case he would release all claim to the grant he would give him a deed to a certain quantity of land, and that the papers were accordingly executed. But when Judge Wood of Tucson submitted them for Lurty’s approval he took the deed but refused to sign the release or redeliver the dead. Later, he had it recorded. The deed was not a fee simple title but merely a life lease. Therefore, Mrs. Roth had no right to the property under the deed, however, she is not an unlawful trespasser, and clams a right by possession.
For the purpose of conveying to you some idea of the state of affairs on the grant between Perrin and Mrs. Roth, I will relate an incident that occurred a short time since. Mr. Perrin and his partner, Mr. Bruce, started from their house with rifles on the plea of shooting ducks. Mrs. Roth saw them advancing toward her house and came to the conclusion that they intended to eject her from the grant. She started to meet them, followed by a friend with a shot gun. As Perrin and Bruce advanced, she hailed them — some exciting words passed between them — when Mrs. Roth took the gun from her companion and fired it off, and Perrin contended that she fired at him, and forthwith proceeded to Tombstone, swore out a warrant and had her arrested for assault with a deadly weapon. Great excitement followed this arrest, and the whole country was aroused and ready for bloodshed.
The trial took place, and I should judge the sympathies of the community were largely in favor of Mrs. Roth, but her defense, as I learn from Judge Barnes who occupied the bench, was at least a little weak from the fact that she swore that she fired the gun at a “snipe sitting on the fence.” As snipers are never known to occupy fences, she may have been mistaken as to the class of birds she shot at. The jury in the case, however, triumphantly acquitted Mrs. Roth, and great rejoicing followed.
Hise attached a clipping from the Tombstone paper, giving a brief account of the trial, which closed with the quotation: “When a woman banks loose with a gun is she shooting at a man, a snipe, or is she simply trying to kick up a little cienega dust?”
In regard to the validity of the grant, Hise stated that he had been unable to determine if the State of Sonora had any authority to dispose of public land in any way except under the Colonization Laws. However, to settle that question would require ample “research by the best judicial minds of the nation, as it is surrounded wi many contingencies that can only be solved by much labor and research.” He complained that he was not a lawyer nor was he versed “in the intricate surroundings of the questions, that will in the end command the best legal ability of the nation to justly solve.” He recommended that the private land claims be referred to “a proper tribunal competent to arbitrate them, and if possible, settle them without appealing to the courts of final resort, which would entail long and tedious delay to the detriment of the territory and nation at large.” Continuing, he stated:
If I may be permitted to express an opinion, I will frankly say that as far as I have examined into the merits of these claims, many of them are frauds and had the title of the lands claimed remained in Mexico, they never would have been heard of in that country, as the laws in force there would have declared them forfeited, as Mexico surrounded her land grants with well defined regulations, but the sharpies, and from the date of the treaty our enterprising Americans have entered the field and breathed the breath of life into many defunct lend claims, which business has yielded in the past a rich harvest to many capitalists and the end is not yet, I regret to say.
Turning his attention next to the question of boundaries, Hise noted that Alles, in making his survey, had been unable to find a single monument set forth in the grant papers, and had to guess as to the location of the center point. He noted that the Commissioner of the General Land Office, in discussing the survey, had stated that it might be “correct or greatly incorrect.” He stated:
In making this survey, my predecessor instructed the Deputy Surveyor to measure off eight leagues, and gave him the grant papers as a guide, and why at least the initial point was not found to commence the survey I cannot explain, and why no monuments were found, if they exist, I am equally at a loss to explain. I am therefore constrained to believe that some unseen and unknown power influenced the location of the survey; perhaps the settlers on the grant themselves had something to do with selecting the location of this grant, or, what would be the most plausible conclusion, the claimants of the grant may have had an object in locating it so as to embrace as many offensive settlers as possible, and. thus cover them by a Writ of Ejectment at the proper time.
It is fair to state that the claimants do not contend that this preliminary survey embraces the full extent of the grant, yet the survey does embrace 34,722.027 acres, within a fraction of the full amount of eight leagues claimed by them. The claimants contend that they are entitled to all the land embraced within certain monuments that they can point out which embrace a much larger area than the survey … They contend that the monuments are the boundaries, and the land embraced within those monuments is their property. Thus, it will be seen that there promises to be an issue on this point, nor is this the only case in which this question of preliminary survey and monumental boundaries will figure. Several other grant claimants are similarly situated, and the question must finally be determined by the highest authorities.
He asserted the preliminary surveys were of no value in determining the validity of the grant, but inured greatly to the advantage of the claimants pending the final determination of the main issues.
Perrin, as Hise had anticipated, asserted that the grant covered a much larger area and requested the reserved area be increased to 132,000 acres, or more than thirty square leagues. When Hise declined to increase the reserved area, Perrin appealed the decision. By opinion[7] dated January 23, 1892, Secretary of Interior John W. Noble affirmed his decision on the ground that the Act of March 3, 1891,[8] repealed Section 8 of the Act of 1854,[9] and all acts amendatory or in extension thereof, which granted the Surveyor General’s office authority to investigate private land claims; and, therefore, the officers of the Land Department were without authority to declare further reservations under such acts.
Perrin’s next step was the filing of a suit[10] in the Court of Private Land Claims on February 27, 1893, seeking the confirmation of the grant. The cause came on for hearing at Tucson on March 27, 1894; and, after a full hearing, the grant was rejected by decision[11] dated September 5, 1894, on the ground that the concession had been made by the officials of the State of Sonora, when at that time the title to the land was in the Government of Mexico. Further grounds for the rejection of the claim were the fact that the grant was void for uncertainty in the description of the property, and the boundary calls were such that no boundaries could be located. Perrin appealed the decision to the United States Supreme Court, which remanded the case to the Court of Private Land Claims by decision[12] dated May 31, 1898, with directions to re‑examine the question of boundaries, description, and area. It held that, it such questions were satisfactorily elucidated by proof, the grant should be confirmed, since Sonora was authorized to make grants of land within its limits in the period between 1827‑1832.
The case came up for hearing on the mandate at the January session, 1899, held at Tucson. At that time Perrin filed an amended and supplemental petition, in which he pointed out that there was an excess amount of land covered by the grant over the area stated in the title papers, and tendered the sum of eight hundred dollars to cover the cost of determining the extent thereof. A large amount of additional testimony was introduced as to the location of the out boundaries and center point of the grant. The testimony offered by witnesses for Perrin tended to show the correctness of his survey of the grant, which was shown to contain 123,068.87 acres. It also tended to show that the center point was located on the south side of a small marsh known as the “little cienega of the Babocomari,” and on the summit of a bald hill opposite the marsh. The testimony offered by the government tended to show that the outboundaries set forth in Perrin’s survey were incorrect located, and, that the tract, if properly surveyed, could contain a substantially smaller area. The government’s testimony further tended to show that the call in the title paper’s for the central point was most vague and indefinite and was, in fact, incapable of location. The title papers placed the central point on a bald hill in front of the small marsh of San Ignacio del Babocomari. It was shown that this cienega was a swamp, a couple of miles or more in length, and that bald hillocks were located along its entire length. The government argued that unless there was some proof to show upon which of these bald hills the central point was located, the grant could be located anywhere within a range of two or three miles from east to west and, therefore, would be void for indefiniteness and uncertainty. The only attempt to identify the hill was the fact that on the hill contended for by Perrin there was a large pile of rocks. It was shown, however, that this mound had been built up recently, about the time Perrin survey was made, and that prior to that time it was simply a group of scattered stones, the cause of the existence of which was entirely problematical. It was shown that such stones are found all over southern Arizona, and also on other bald hills in the vicinity of the marsh, both on its north and south sides.
Upon this state of the record it was contended by Perrin that a confirmation should be entered for the entire 123,068.87 acres; whereas, on the part of the government, the contention was that the grant should be rejected for uncertainty and indefiniteness in the calls of the title papers, and also for failure to prove the location of such objects with even approximate certainty. It was contended, however, that should a confirmation be entered, the court was plainly limited to the quantity mentioned in the title papers, to wit: eight sitios or 34,707.71 acres.
The court, on November 27, 1899, handed down a majority decision[13] confirming the grant to the extent of eight sitios being four sitios eastward and westward from the center contended for by claimant. The majority opinion also held that the Act of May 12, 1835 did not vest in the grantee any present interest in the excess acreage lying within the out boundaries of the grant. It merely gave him the privilege of purchasing it if he chose, and that privilege ceased when jurisdiction over the area passed to the United States in 1853. It also rejected Perrin ‘s argument that the common law rule, which states that calls for natural objects should ordinarily prevail over calls for quantity, since “quantity” was the very essence of the sale in question. Justices M. Murray and Thomas C. Fuller wrote a dissenting opinion, stating they believed the grant should be rejected on the grounds urged by the government. Perrin appealed the decision to the Supreme Court, hoping to secure the recognition of his entire claim. The government’s attorney,[14] in his report to the Attorney General, stated:
In my opinion, it is the plain intention of the Supreme Court, as announced by its decision in the case of Perrin v. United States (171 U.S. 292), that eight sitios the quantity paid for, shall be confirmed to the plaintiff, if the same can be satisfactorily identified. I very much fear that it would be impossible to reverse the judgment of The Court of Private Land Claims, which makes a finding of the location and identifies the eight sitios bought and paid for. At any rate, I do not believe that the chances of success on such an appeal are sufficient to justify my recommending its prosecution …
The appeal was dismissed[15] on April 7, 1902 on the motion of the Solicitor‑General pursuant to a stipulation between the parties. The grant was surveyed by Deputy Sureyor Philip Contzen from July 16 to 30, 1902 for 33,792.20 acres, and patented on May 16, 1904.[16] It should be noted that this grant is not only the largest confirmed grant in Arizona but is also the only Arizona grant confirmed for more than four square leagues.
[1] Reynolds, Spanish and Mexican Land Laws, 129‑131 (1895).
[2] Ibid.
[3] The San Ignacio del Babocomari Grant, No. 4 (Mss., Records of the S.G.A.).
[4] Ibid.
[5] (Stet.)
[6] Misc. Doc. No. 12, 42d Cong., 1st. ness., 5 (1871).
[7] San Ignacio del Babocomari Grant, 14 L.D. 97 (1892).
[8] Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891).
[9] An Act to establish the offices 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).
[10] Perrin v. United States, No. 3‑‑1/2 (Mss., Records of Ct. Pvt. L. Cl., Ariz. Dist.).
[11] 1 Journal 71 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[12] Perrin v. United States, 171 U.S. 292 (1898).
[13] 1 Journal 162 (Mss. Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[14] Report of the United States Attorney dated May 10, 1900 in the case Perrin v. United States (Mss., Records of the General Services Administration, National Archives, Washington, D.C.), Record Group 60.
[15] Perrin v. United States, 22 s. ct. 941, 46 L. Ed. 1266 (1902) (mem.).
[16] B.L.M. to J.J.B. dated August 8, 1968.
San Ignacio del Babacomari Grant; J.J. Bowden's research on land grants in the southwest.