by J. J. Bowden
Bartolome Fernandez, brevet ensign at the Garrison of Santa Fe, appeared before Governor Pedro Fermin de Mendinueta and registered a tract of vacant land located on the watershed of “the Navajo Province” for the pasturing of his livestock. The tract was described as being bounded:
On the north, by the lands of Felipe Tafoya; on the east, by the edge of a timbered mesa; on the south, by the Ojo de San Miguel; and on the west, by the brow of a short mesa, which is also timbered.
Fernandez estimated that the tract contained “about four leagues, somewhat more or less.” He requested Mendinueta to grant him the tract:
… in consideration of the many and great services that my deceased grandfather, Captain Martin Hurtado, founder of the village of Albuquerque, and ensign of the line of this said garrison, pacificator of this said province, rendered; and also those rendered by my deceased father, also pacificator and ensign of the line in the mounted company of the royal garrison of El Paso, as well as those rendered by my brother, who served his Majesty, and in whose service he died, and as well, also, as those rendered by myself.
Mendinueta, in view of the meritorious services rendered by Fernandez and his ancestors, granted the requested tract to him on September 2, 1767, provided the concession would not injure any third parties having a better right to the land and especially the Navajos, who lived at Ojo de San Miguel. Fernandez also was instructed to treat all unchristianized Indian with kindness so as to draw them into Christianity. In closing, Mendinueta appointed Carlos Perez de Miraval as a special commissioner to place Fernandez in royal possession of the grant and instructed him that should the Navajos, who were living at the Ojo de San Miguel, object to the grant on the ground that it encroached upon their property, Miraval was to locate the southern boundary further north and give Fernandez an equivalent amount of land in one of the other directions. By virtue of this commission, Perez went to the grant nine days later and, finding no Indians living at San Miguel Spring, he questioned a Navajo about the Indians’ use of the spring. He said that the Navajo Apaches often used the spring as a base while hunting, but that such hunting expeditions were small and their stay short. Since he encountered no objection from the Spanish residents who lived in the area and determined that this grant would not prejudice the rights of the Indians, Perez performed the customary ceremonies to place Fernandez in royal possession of the concession.[1]
Tomas Baca, for himself and on behalf of Fernandez’s other heirs and legal representatives filed the testimonio of the grant in the Surveyor General’s office and petitioned[2] Surveyor General James K. Proudfit on January 8, 1873 seeking the confirmation of the grant. The testimony of two venerable witnesses was also offered support of the claim. The first, Lorenzo Baca, who was ninety-seven years old, testified that he had been familiar with the grant long before the Mexican War and knew that it belonged to Fernandez. He stated that although Fernandez usually resided at Santa Fe, he had a small house on the grant where he pastured his livestock whenever the hostile Indians would let him do so with reasonable safety. Juan Estevan Baca, who was eighty-three, testified that the grant, which was “a very fine body of land,” had been granted to Fernandez, his great grandfather, for ranching purposes and that Fernandez and his descendants always had been recognized as the owners of the land. By decision[3] dated January 7, 1874, Proudfit held that the testimonio was genuine and that he had no doubts concerning the bona fides of the petitioner’s claim. Therefore, he recommended that the grant be confirmed by Congress. A preliminary survey of the grant was made in October and November, 1877, by Deputy Surveyors Sawyer & White for 25,176.39 acres.[4]
Since Congress had not acted upon the claim, Roman A. Baca filed suit[5] in the Court of Private Land Claims on January 19, 1893, in an effort to secure the recognition of the grant. A similar suit[6] was filed by David Trujillo on February 23, 1893. The two cases were consolidated[7] on April 16, 1894, when the case came up for trial. The plaintiffs offered and proved that the testimonio was genuine, connected themselves with Fernandez, and showed that the grant had been occupied more or less continuously subsequent to the date of delivery of possession of the premises. The government was unable to present any defenses, either in law or fact, against the confirmation of the claim. Therefore, by decision[8] dated April 20, 1894, the Court confirmed the grant to the heirs and legal representatives set forth in the grant papers. The decision aggrieved neither side and, therefore, no appeal was taken.
Once the decision became final, a contract was awarded to Deputy Surveyor Norris T. Cavalier for the survey of the grant. His work showed that it contained 25,455.24 acres or slightly more land than was embraced in the preliminary survey. The grant was patented on April 1, 1903 based on the Cavalier survey.
[1] H. R. Exec. Doc. No. 206, 43d Cong., 1st Sess. 16‑18 (1874).
[2] The Bartolome Fernandez Grant, No. 78 Records of the S.G.N.M.).
[3] H. R. Exec. Doc. No. 206, 43d Cong., 1st Sess. 20 (1874).
[4] Ibid.
[5] Baca v. United States, No. 61 (Mss., Records of the Ct. Pvt. L. Cl.).
[6] Trujillo v. United States, No. 61 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] 2 Journal 82 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] 2 Journal 95‑97 (Mss., Records of the Ct. Pvt. L. Cl.).
Bartolome Fernandez Grant; J.J. Bowden's research on land grants in the southwest