by J. J. Bowden
Felipe Tafoya, an attorney and resident of Santa Fe, petitioned Governor Tomas Velez Cachupin on behalf of Diego Antonio and Pedro Chaves, residents of the Town of Atrisco, seeking a grant covering a tract of vacant land located west of the Salvador Jaramillo Grant. He stated that his clients had been using a parcel of land between Albuquerque and San Fernando del Rio Puerco as a pasturage for their livestock but had been evicted by the inhabitants of the latter town. Therefore, they had moved their animals to the requested tract, which contained a good spring and abundant pasturing grounds. Cachupin, in an opinion dated December 3, 1766, denied the application stating:
If the parties have not had any land or grant whereon to pasture their animals, they might have joined the new settlement of San Miguere de Learedo and San Gabriel de last Nutrias (in which settlements there are the necessary public pasturing grounds), or have in like manner domiciliated themselves at San Fernando del Rio Puerco, where families not possessing the advantages of lands and pasture grounds were sought for the settlement of that place. But these parties doubtless experienced fear, as the said places were frontier places, and as they lacked the courage for their establishment, and they have registered the tract they mention for the pasturage of their stock, because it is in the peaceful region of the Navajo country. They may occupy the same while the natives of that district do not object.…
Shortly after Pedro Fermin de Mendinueta succeeded Cachupin, Tafoya, for himself and on behalf of the Chaveses, re-registered the tract which he described as being bounded:
On the north, by two small springs at the base of the mesa facing the lands of Salvador Jaramillo; on the east, by the base of said mesa; on the south, by a timbered hill; and on the west, by some small white mesas.
He estimated that the tract contained about one and a half leagues on each course. He was careful to point out that the requested tract was unfit for cultivation and, since the Chaveses had settled among and treated the Apaches with kindness, they would not object to the granting of the land to them. He also called Mendinueta’s attention to the fact that he was the son of Ensign Antonio Tafoya, who had entered New Mexico with Governor Diego de Vargas at the time of its reconquest. He described how his father had served the king until 1747 when he was accidentally blinded and how he, in turn, had joined the army once he was old enough and faithfully served the king until ill health forced his retirement some ten years later. He stated that he was the head of a larger family and had some animals and, since neither he nor his father had received a grant for their meritorial services, he requested that the grant be made jointly to the three petitioners. On June 15, 1767 Mendinueta directed the Alcalde of the Queres nation, Bartolome Fernandez, to report to him as to whether or not the issuance of the requested concession would injure the Apaches or any other third party, if boundaries mentioned in the petition embraced the distances given; if the tract contained any lands suitable for cultivation, and if the Apaches had planted any of the land. In compliance with Mendinueta’s request, Fernandez advised him that he personally was acquainted with the tract and knew that the granting of the land to the petitioners would in no way be prejudicial, to the rights of the Apaches or the inhabitants of the area. In connection with the western boundary of the tract, lie stated that he was unable to decide upon the distance which the parties supposed to be one and a half leagues, since there were numerous small white mesas in that direction. Continuing, he stated that although he was familiar with the natural objects fixing the other three boundaries, he believed they might be “somewhat more than the league and a half.” He also reported that by damming up the “little water there,” a limited amount of agriculture could be conducted upon the tract. In conclusion, he stated that while he had seen a few stalks of corn growing in a number of the valleys located within the grant, no Apaches were located near them. He observed that as a general rule the Apaches, due to their fear of the Utes, generally lived on the highest and most rugged parts of the mesas instead of in the valleys. Mendinueta, on June 20, 1767, granted the three petitioners “one league by courses, leaving to their selection the designation of the center point from which will be measured off two thousand five hundred Castilian varas each way, and if the measure cannot be on a square form, and it be necessary for it to be oblong or triangular, its circumference shall nevertheless be twenty thousand Castilian varas …” The concession was made on the conditions that the grantees in order to acquire legal title in fee (“legitimo derecho de propiedad y señorío”) occupy the land with their animals for four years and that it would cause no injury to the Apaches. He also directed Fernandez to place the grantees in royal possession of the premises. Should any of the adjoining landowners who were to be notified in advance of Fernandez’s plans to deliver possession, object, he was instructed to suspend the proceedings pending the receipt of further orders. In obedience to provisions of the granting decree, Fernandez, on July 4, 1767, went to the settlement, which had been formed by the grantees and called Nuestra Senora del Pilar. He measured the requested tract, which was 13,700 varas from north to south and 6,300 varas from east to west, and thus, making up the 20,000 varas which had been granted to the three grantees. This tract was bounded:
On the north, by the point of a white mesa ranging from east to west; on the east, by the base of the Mesa Grande; on the south, by the point of level ground where the mountain road comes down and where some springs of water appear in a small wet meadow; and on the west, by a small creek where a spring of water appears running from south to north.
Upon completion of the survey, he summoned the Apaches, who were the only adjoining landowners and advised them of the grant. Since they had no objections to the grant, Fernandez placed the grantees in royal possession of the premises.[1]
The heirs and legal representatives of the three original grantees presented the grant[2] to Surveyor General James K. Proudfit on November 10, 1874 for investigation under Section 8 of the Act of July 22, 1854.[3] By decision[4] dated December 14, 1874, Proudfit stated that in view of the fact that the expediente was in the Spanish Archives and obviously was genuine, he was of the opinion that the grant was valid and recommended that the grant be confirmed to the heirs and legal representatives of the original grantees according to the boundaries set forth in the Act of Possession. A preliminary survey of the grant was made in October, 1877 by Deputy Surveyors Sawyer & White for 22,578.12 acres.[5]
Since the claim was still before Congress awaiting approval or rejection, it was re‑examined by Surveyor General George W. Julian under Commissioner William A. J. Sparks’ instructions of December 11, 1885.[6] In a Supplemental Report[7] dated June 21, 1886, Julian found that notwithstanding the statement in the claimants’ petition that the original grantees and their heirs and legal representatives had occupied the grant at all times subsequent to 1767, it appeared that the grantees had abandoned the premises soon after being placed in royal possession. He also pointed out that the claimants had failed to offer any evidence connecting themselves to the original grantees. Next, he pointed out that the grant covered a tract 20,000 Castilian varas in circumference while the tract described in the Act of Possession embraced twice that amount. Thus, the alcalde had placed the grantees in possession of a tract more than four times the area which had been granted. He noted that such action, which unquestionably exceeded the alcalde’s authority, manifestly was erroneous. He concluded the report by stating:
I am of the opinion that the evidence fails to establish either a legal or equitable title in anyone to any portion of the land claimed, and therefore recommend the rejection of the claim by Congress.
Congress, recognizing that it was not qualified to determine the myriad questions raised by the Southwestern land grant problem, created the Court of Private Land Claims, with authority to adjudicate such land titles.[8] On January 28, 1893 Roman Antonio Baca, who, in the meantime, had purchased the grant from the heirs of the three original grantees, filed suit[9] in that court for its confirmation.
The case came up for trial on September 26, 1894 at which time Baca introduced the expediente the numerous deeds by which he acquired his interest, and testimony establishing the title of his grantors as heirs of the original grantees. The government, in turn, attempted to prove that the grantees had abandoned the grant long prior to the time the United States acquired New Mexico. In support of this contention, it introduced Felipe Tafoya’s will,[10] which contained no mention of the grant, and therefore, indicated claimed no interest in the property. Next, the government asserted that the concession was merely a license to use the land for pasture purposes, and, under the doctrine of the Pueblos of Zia, Santa Ana, and Jemez case,[11] “title to the land vested in the United States upon the change of sovereignty.” The government’s third contention was that if the grant was one which the United States was obligated to recognize, it was an express grant by quantity, and that the action of the alcalde, in extending the boundaries, was not binding on the United States.
By opinion[12] dated February 6, 1895, the court held that the expediente was genuine, and Baca had such an interest in the premises as to entitle him to institute the suit, and that the real controversy between the parties pertained to the character of the grant and the quantity of land covered thereby. In connection with the character of the grant, the court held:
We know of no reason why the Spanish Governors of New Mexico should not have made a perfect grant of land which could only be used for pasturage. The legal title to all the public land was in the crown, with full power of disposition. The Governor of the province of New Mexico, at the date of this grant, represented the king in the matter of granting land, and possessed full power and authority to vest the petitioners with the legal title, or with the right to use the same for the purpose of pasturing their stock. It is quite clear that the object in presenting the second petition was to secure the land asked for, and not a mere right of pasturage. Two of the petitioners were in actual possession of the land under the grant from Governor Cachupin, which grant gave them the right to the use and occupation of it for the purpose of pasturing their stock. It was known to them that the land was not suitable for cultivation; so it is hardly fair to assume that they were asking the Governor to grant them a right, which they already possessed under the former grant …. The Spanish words in the granting clause are “para adquirir legítimo derecho de propiedad y señorío” (“in order to acquire legitimate right of property and dominion”). The Spanish words “propiedad y señorío” are equivalent to the English words “fee simple.”
The court distinguished the Pueblos of Zia, Santa Ana, and Jemez case[13] by pointing out the grant to the pueblos had been “para que lo poseían con derecho legítimo,” or “right to hold the same, with legitimate right of possession.” It asserted that if Governor Cachupin, who was a man of ability, had intended to grant the pueblos anything more than a usufructuary right, he would have used the proper words to have conveyed such right. Continuing, the court held that while the concession vested legal title to premises, it was a grant by quantity, and not by metes and bounds. It pointed out that there was no ambiguity in the granting decree, and the intention of the governor was clear and explicit, it also found that an alcalde had no power to disregard the express directions of the governor and fix the boundaries and determine the quantity of land covered by a grant to suit his own notion of what ought to have been granted. Therefore, it confirmed the grant in the name of the grantees, their heirs and assigns, for one league. It allowed Baca ninety days to select a league from within the out boundaries of the grant, and if he failed it ordered that a square league of 20,000 Castilian varas be surveyed commencing at the “base of the Big Mesa mentioned in said report of the alcalde as the eastern boundary and run west 5,000 varas; this ran from the middle of said line (2,500 varas from the beginning point) 2,500 varas north and south. . . Baca, being aggrieved by the decision, appealed to the United States Supreme Court. However, it was dismissed[14] pursuant to Rule 10 on November 5, 1897 as a result of Baca’s failure to file a printed transcript.
Since Baca failed to select his league, Deputy Surveyor George H. Pradt was directed to survey the grant pursuant to the instructions set forth in the decree. On March 3, 1899, he reported that it would be difficult, if not impossible, to locate the league so as to he acceptable to both parties, because the location of the north and south lines was indefinite. He pointed out that the decree merely inferred that such lines were to be east‑west lines 5,000 varas apart. By letter dated March 21, 1899, commissioner Binger Hermann stated that he was unable to see why Pradt was not able to understand the intent of the court. To him, it was clear that the tract was to be surveyed as a 5,000 vara square with the base of the Big Mesa as the center of the east line of the grant. Notwithstanding Hermann’s letter, Pradt surveyed the grant as a rectangular tract located on both sides of San Miguel Creek. His survey was made between the 4th and 8th of August, 1899, and covered 4,340.23 acres. The survey was approved by the court on August 7, 1900, and a patent was issued April 24, 1902.[15]
[1] Archive No. 199 (Mss., Records of the A.N.M.).
[2] The Felipe Tafoya Grant, No. 99 (Mss., Records of the S.G.N.M.).
[3] 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).
[4] H. R. Exec. Doc. No. 62, 43d Cong., 2d Sess., 44‑45 (1874).
[5] The Felipe Tafoya Grant, No. 99 (Mss., Records of the S.G.N.M.).
[6] Exec. Doc. No. 113, 49th Cong., 2d Sss., 2 (1887).
[7] S. Exec. Doc. No. 11, 50th Cong., 1st Sess., 2‑3 (1887).
[8] Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891).
[9] Baca v. United States, No. 67 (Mss., Records of the Ct. Pvt. L. Cl.)
[10] Archive No. 995 (Mss., Records of the A.N.M.).
[11] Pueblos of Zia, Santa Ana and Jemez v. United States, 168 U. S. 198 (1897).
[12] 2 Journal 284 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] Supra., see Note 11.
[14] Baca v. United States, 18 S. Ct. 939, 42 L. Ed. 1207 (1897) (mem.).
[15] The Felipe Tafoya Grant, No. 99 (Mss., Records of the S.G.N.M.).
Felipe Tafoya Grant; J.J. Bowden's research on land grants in the southwest