by J. J. Bowden
Jose Antonio Crespo, a resident of Guaymas, petitioned the Governor of the State of Sonora, on September 10, 1852, and asked for a grant covering ten square leagues of vacant agricultural and pasture land at the place known as Tres Alamos, for the purpose of establishing thereon a colony of foreigners under the Resolution promulgated by the Congress of the State of Sonora on January 29, 1852.[1] His plan was to colonize the grant with at least one hundred families from South America or Spain. He pointed out that it would require a substantial amount of time and money to recruit and transport the colonists to the grant. Therefore, he requested the Governor to give him from five to ten years to complete the project. Crespo asserted that the granting of his supplication afforded the state several special advantages. First, he called attention to the fact that colonists would speak Spanish and have the same religions and customs as the local inhabitants and, therefore, would create no assimilation problems. Second, he noted that the grant, which was located on the Apache war trail, would serve both as a barrier against the incursions of the barbarians, and a base from which attacks could be launched upon such Indians. Five days later, Fernando Cubillas, ad interim Governor of the State of Sonora, after finding that he had authority under the Regulations of January 29, 1852,[2] which authorized the Executive of the State to make grants, in order to encourage the resettlement of lands and towns abandoned due to the incursions of the Indians, and also that Crespo had the capabilities for fulfilling his covenants, granted him ten square leagues at Tres Alamos, which was described as being situated to the north of the Presidio de Santa Cruz, Tubac and cultivations of the San Pedro River. He also gave Crespo eight years within which to select his land and establish the colony. Continuing, he stated that the survey of the grant was to be made, at Crespo’s expense, as soon as he had selected and occupied the lands covered by the grant.
George Hill Howard, who had purchased the grant from Crespo’s widow and children on January 14, 1883, petitioned[3] Surveyor General J. W. Robbins on “March 1883,” and requested him to investigate the claim under the provisions of the Act of July 15, 1870.[4] He alleged that as a result of the acquisition of the area in 1853 under the Gadsden Purchase,[5] Cresco was unable to obtain the 4,000 pesos which was authorized under the Regulations of January 29, 1852[6] to assist him in colonizing the land, and, notwithstanding Crespo’s intention to fulfill his covenants, the failure to obtain this monetary assistance and the increased hostility of the Apaches prevented the settlement and occupation of the grant. By decision[7] dated September 17, 1883, Robbins reported that Rufus C. Hopkins, a gentleman and very learned expert in the matters of land claims derived from the Spanish and Mexican governments, had made a thorough examination of the Sonoran archives at Hermosillo under instructions from his office and had found the grant papers to be genuine, properly executed by the governor, and archived in the Secretary of State’s office. Continuing, Robbins found that the grant was full and complete at the time of its issuance. However, if it was a conditional grant, the conditions pertaining to the surveying and establishing a settlement on the promises were conditions subsequent which had been prevented by the change of sovereignty and hostility of the Apaches, and therefore the terms of the Treaty of Guadalupe Hidalgo, which had been incorporated into the Gadsden Treaty obligating the United States to inviolably respect property rights located in the territory, prevented the forfeiture of the chain for the nonfulfillment of such conditions, in closing, he stated:
Without going further into the discussion of legal questions involved, it is obvious that the title is now in the grantee, and must remain there, unless divested by an action of the Government of the United States. Documents showing deraignment of the title of George Hill Howard are also herewith submitted. I therefore recommend the confirmation of the title to ten square leagues of land at the place known as “Tres Alamos,” lying on and along (riberanos) the San Pedro River, to the said George Hill Howard.
In May, 1885, Howard requested Robbins to survey the claim in accordance with the usages, customs and practices of Mexico. He asserted that when an applicant asked for a grant covering a specified quantity of land at a certain place the custom was to establish that place as the initial point, and then conduct the survey of the grant toward each of the cardinal directions in accordance with the intent of the description calls set forth in the grant. Continuing, he noted that the other grants lying upon the San Pedro River were one league in width, and were so located as to have the river in their center. Therefore, he asked that the grant be surveyed as a one league wide tract extending five leagues up the river and five leagues downstream from Tres Alamos in such a manner and with such angles as may be necessary to include the river. While the petition was being considered by Surveyor General Royal A. Johnson, the Commissioner of the General Land Office instructed him to enter into no further surveying contracts from the appropriations made for his office. On October 8, 1885, Howard asked Johnson if he would survey the grant. if he deposited a sum sufficient to cover the cost of the survey. Upon being advised that there was no authority authorizing the surveying of the ground under the deposit system, Howard appeared and by decision[8] dated March 8, 1886, Secretary of Interior, L. Q. C. Lamar, recognized the duty of the government to reserve from sale lands covered by private land claims and to designate them by preliminary surveys. Therefore, he ordered Johnson’s successors, John Hise to survey the grant in the event Howard deposited a sum sufficient to cover the cost of the survey and office work.
Before any further action could he taken in connection with the survey, Hise reexamined the claim and on June 24, 1886 issued a Supplemental Report[9] in which he recommended the rejection of the claim for the following reasons:
First: The location of the alleged grant is too indefinite and vague to permit an intelligent survey.
Second: The alleged grantee never accepted this alleged grant according to law and custom, and never entered into nor possessed the alleged grant of Tres Alamos, nor in any other manner or form whatever fulfilled the requirements of law and common custom.
Third: The alleged grantee was never prevented or hindered in the acceptance of said alleged grant, or in the occupation and use of same, either by the non‑fulfillment or any obligation assumed by the alleged executive grantor or by any fortuitous circumstances not expressly assumed by the alleged grantee.
Fourth: The alleged title of the said alleged original grantee was never duly recorded in the Archives of Mexico, nor was said alleged title ever confirmed by any competent authority.
Fifth: Neither the title to this nor to any other tract of land known as Tres Alamos was ever vested in the alleged original grantee.
Sixth: The said alleged tract of land was never segregated by any Mexican authority from the public domain, and therefore could not have been the fee simple of the alleged grantee.
Seventh: The government of the United States did, in good faith and, for a full and proper consideration, purchase said alleged tract of land, together with other territory, from the said original and sole possessor in fee, to wit: the Mexican nation, under and by virtue of the so-called Gadsden Treaty; and neither the alleged grantee nor his successors can claim right or equity against this government.
Eighth: Finally, providing all other acts were made, executed and performed according to law and custom corresponding thereto, and providing the alleged grant of Tres Alamos could be definitely located and surveyed, the grantor was incompetent in that his act was unconstitutional and without authority at law, and against custom and public policy, and the alleged grant on this account, ab initio, null and void.
Since Congress had not acted on the claim prior to 1891, Howard and Francis E. Spencer, who, in the meantime, had acquired an interest in the grant from Howard, instituted a proceeding[10] in the Court of Private Land Claims on February 7, 1893, against the United States and a large number of persons occupying the premises in an effort to secure the juridical confirmation of the grant. They described it as being a ten league or 43,384.64 acre tract located north of the Rancho San Juan de las Boquillas y Nogales Grant and was one league wide and ten leagues from north to south with the San Pedro River running through the center of the premises. The United States filed an answer putting in issue the allegations contained in the petition.
The cause came up for trial on June 8, 1899, and was thereupon submitted upon the pleadings, the title papers filed with the pleadings, and upon the admission of the claimants, in open court, that Crespo had never established the colony pursuant to his agreement, which was the solo consideration for the grant. The government, on the other hand, contended that the claim should be rejected on the ground that the concession was made by the Governor of Sonora under authority of an Act of the Congress of the State of Sonora for the purpose of colonization, and neither the governor nor the state congress had authority to make a valid concession for that purpose. In support of its argument, the government pointed out that under the Act of Constitutional Reforms of May 18, 1847,[11] it was specifically provided that it was within the exclusive power of the general congress to grant sites for colonization. It also called attention that the national authorities by decree[12] dated May 14, 1851, had declared unconstitutional a second attempt by the State of Sonora to colonize a tract of public land located within its boundaries. Howard and Spencer tried to distinguish their claim from the grant rejected by the decree of May 14, 1851, by arguing that the Tres Alamos Grant was an empresario grant made for the purpose of inducing immigrants to move to Mexico within a stated period, that the actual introduction of such colonists was a condition subsequent which had been prevented by circumstances beyond Crespo’s control, and that Crespo was not in default at the time the United States acquired the area. Upon the admission, in open court, by the claimants counsel that Crespo had never complied with his agreement to form a settlement on the grant, the government argued that the claim could not be confirmed by the court, since Section 13 of the Act of March 3, 1891[13] provided:
No concession, grant, or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it appears that every such condition and requirement was performed within the time and manner stated in any such concession, grant or other authority to acquire land.
The attention of the court was also called to the historical incident connected with the deletion of Section 10 from the Treaty of Guadalupe Hidalgo[14] by the United States for the very reason that such section attempted to provide permission to claimants to comply with the conditions of their grants after the cession when they had failed or been prevented from complying with such conditions prior to the date of that treaty. It argued that the refusal of the United States to accept the article was in effect a statement by it that it would not recognize any grants where the conditions embodied therein had not been complied with prior to the date of the cession and that claims such as the claimant’s would stand on the same basis, since the only provision for the protection of property rights under the Gadsden Treaty was a reference to Sections 8 and 9 of the Treaty of Guadalupe Hidalgo. The Court on June 9, 1899, announced its decision[15] sustaining the government’s contention and rejecting the grant. Howard and Spencer appealed the decision to the United States Supreme Court, but it was dismissed[16] on February 5, 1900, as a result of their failure to appear and prosecute the appeal.
[1] S. Exec. Doc. No. 29, 50th Cong., 1st Sess., 24‑25 (1887).
[2] Ibid.
[3] The Tres Alamos Grant, No. 17 (Mss., Records of the S.G.A.).
[4] An Act making appropriations for sundry civil expenses of the government for the year ending June 30, 1871, and for other purposes. Chap. 292, 16 Stat. 291 (1870).
[5] 6 Miller, Treaties and Other International Acts of the United States America 293‑302 (1942).
[6] S. Exec. Doc. No. 29, 50th Cong., 1st Sess., 25 (1887).
[7] H. R. Report No. 187, 49th Cong., 1st Sess., 2‑4 (1886).
[8] The Tres Alamos Grant, 4 L.D. 430 (1886).
[9] S. Exec. Doc. No. 29, 50th Cong., 1st Sess., 5‑13 (1887).
[10] Spencer v. United States, No. 71 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[11] Reynolds, Spanish and Mexican Land Laws, 224 (1895).
[12] Ibid., 296.
[13] Court of Private Land Claims Act, Chap. 539, Sec. 13, 26 Stat. 854 (1891).
[14] S. Exec. Doc. No. 52, 30th Cong., 1st Sess., 49‑50 (1848).
[15] 4 Journal 88 (Mss., Records of the Ct. Pvt. L. Cl.).
[16] Spencer v. United States, 20 S. Ct. 1026, 4 L. Ed. 1221 (1900) (mem.).
Tres Alamos Grant; J.J. Bowden's research on land grants in the southwest