by J. J. Bowden
On November 1, 1818 Juan Duran, a resident of the Town of Albuquerque, presented a petition to Governor Facundo Melgares asking that a tract of land in the Canon de Carnue be granted to him and twenty others. As consideration for the grant, the petitioners stated that they would give the government a third of their crops for a period of two years. Two days later Melgares referred the matter to Pedro Pino and directed him to “decide what was proper.” On the same day, Pino asked the Alcalde of the Villa of Albuquerque, Jose Mariano de la Pena, for a report concerning the merits of the petition. In response thereto, Pena, November 4, 1818 advised that the proposed settlement of the land would be beneficial to the jurisdiction; and, since the Apaches who previously had forced the abandonment of the tract which had been settled under a grant[1] made in 1763 were at peace, he saw no reason why the request should not be granted. Before any further action was taken on the petition, Juan Ignacio Tafoya, together with twenty-six other residents of Albuquerque, petitioned Melgares and advised him that there were additional or surplus lands at Carnue which were beyond those which recently had been settled and requested him to grant them the lands from the Quistecito to San Antonio. They also offered on third of their crops for two years as consideration for the lands. This petition was also referred to Pena for a report. On January 29, 1819 he advised Melgares that this was one of three requests for land at Carnue and that many of the petitioners already had land of their own. The report caused Melgares no little concern, and he ordered Pena to advise him of the names of the parties who did not have any land. Pena sent a list to the governor on February 5, 1819 in which he set forth the names of thirty-five persons who needed land for their support and recommended that a grant be made to them. Five days later Melgares referred the matter, together with all the papers in connection with the prior proceedings, to Francisco Madariaga, Assessor of New Mexico, for his comments. On the same day Madariaga also recommended that a grant he made to the landless petitioners. As a result of the favorable reports by Pena and Madariaga, Melgares granted the lands “with justice among the petitioners under the established rules.” He also directed Pena to appoint local officials to maintain the peace at the new settlement and collect the revenues promised the king as consideration for the concession.
The alcalde was further ordered to allot each of the grantees an individual farm tract. Before Pena was able to carry out the governor’s instructions, Antonio Chaves and seven other residents of the Town of Padillas advised Pena that there was enough agricultural land at Carnue to satisfy the needs of the grantees, with enough to spare to give each of them a farm tract. Therefore, they requested Pena to grant and distribute the surplus lands to them on the same terms. Pena requested the Alcalde of Padillas to advise him as to whether or not the petitioners were free to join the new settlement and if they had any land elsewhere. Alcalde Luis Padilla answered on March 6, 1819 stating that the eight petitioners met all qualifications necessary to join the colony. Upon receipt of the report, Pena referred the matter to Melgares for his further action. Melgares, in turn, ordered Pena to allocate the surplus lands to the new settlers. On March 24, 1819 Pena went to the grant and placed the several grantees in royal possession of a tract of land comprising the valley from the entrance of the Canon of San Miguel de Carnue to a cross set up on an arroyo two hundred varas north of San Antonio. The next two days were occupied with the allotment of a narrow strip of land to each of the seventy-three families who had moved to the grant. Most of the individual tracts were 150 varas wide. [2]
A claim was presented[3] to Surveyor General T. Rush Spencer by the heirs and legal representatives of Duran and the other grantees on March 15, 1871 seeking the investigation and confirmation of the grant under Section 8 of the Act of July 22, 1854.[4] By decision[5] dated May 11, 1886, Surveyor General George W. Julian found the grant papers to be genuine and that the tract had been occupied continuously since the date of the issuance of the grant. He also found that the grant ran from the entrance of the Canon de Carnue to the ruins of the Pueblo of San Antonio and extended to the foot of the hills on both sides of the Canon. Therefore, he recommended the confirmation of the claim by Congress to the legal representatives of the original grantees subject to the reservation of all minerals by the United States since the oral testimony in the case indicated that the land contained valuable natural resources.
As a result of Congress’ failure to act upon the claim prior to the creation of the Court of Private Land Claims, Pedro Crespín, who claimed to be the legal successor in interest of one of the original grantees, filed suit[6] against the United States in that court seeking the confirmation of the grant. He alleged that the grant contained about 90,000 acres and was bounded:
On the north and northwest by the summit of the mountain on that side of the Canon and the ridge known as El Bardo; on the east, by the Puertecito del Eje and the Ceja de los Vacunos; on the south, by the Puertecito do los Llares and the summit of the mountain on that side of the Canon; and on the west, by the Serró Huerfano.
He asserted that Julian was mistaken when he found that the grant covered only the land within the Canon between the hills on each side. He also contended that a confirmation to such extent would be of no practical value since it would exclude nearly all the sources of water, fuel, timber, and pasture and would leave the owners of the grant at the mercy of evil disposed persons who might appropriate the uplands on both sides of the Canon. The government filed a general answer putting in issue the allegations contained in Crespín’s petition.
The case came up for trial on August 20, 1804 at which time Crespín offered in evidence a copy of the expediente of the grant[7] and oral evidence which tended to show that the original grantees and their heirs and legal representatives had claimed the tract of land described in the petition, notwithstanding the fact that such natural objects were not mentioned in the grant pacers. The government, on the other hand, contended that the grant was confined to the lands lying within the Canon de Carnue between its entrance and the cross situated north of San Antonio. The Court, in its decision[8] dated September 29, 1894 sustained the government in its contention and confirmed the claim to the extent of the lands in the bottom of the canon. The grant was surveyed in January, 1901 by Deputy Surveyor Levi S. Preston for 2,000.59 acres and patented on February 2, 1903.[9] The United States Attorney, in his report[10] to the Attorney General on the grant states:
This case is interesting from the fact that it shows the method of procedure in the matter of making grants more clearly than any other which has been presented to the court. It also supports the contention of the government that the fee in the lands granted which were not actually partitioned to the grantees remained in the crown with the right of disposal to future settlers and did not vest in the grantees.
[1] The Canon de Carnue was granted to certain persons by Governor Tomas Velez Cachupin in 1763, but was abandoned in 1771 as a result of the hostilities of the Apaches. When the inhabitants of the grant refused to return to the grant, Governor Pedro Fermin de Mendinueta revoked it. Archive No. 202 (Mss., Records of the A.N.M.).
[2] Archive No. 1008 (Mss., Records of the A.N.M.).
[3] The Canon de Carnue Grant No. 150 (Mss., Records of the S.G.N.M.).
[4] An act to establish the office of Surveyor General of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein and for other purposes, Chap. 103, Sec. 8, 10 Stat. 308 (1854).
[5] The Canon de Carnue Grant, No. 150 (Mss., Records of the S.G.N.M.).
[6] Crespín v. United States, No 74 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] Archive No. 1008 (Mss., Records of the A.N.M.).
[8] 2 Journal 251 (Mss., Records of the Ct. Pvt. L. Cl.).
[9] The Canon de Carnue Grant, No. 150 (Mss., Records of the S.G.N.M.).
[10] Report of the United States Attorney dated November 5 1894 in Crespín v United States (Mss., Records of the General services Administration, National Archives, Washington, D.C.), Record Group 60, Year File 9865‑92.
Canon de Carnue Grant; J.J. Bowden's research on land grants in the southwest