by J. J. Bowden
Jose Chavez Garcia do Noriega, a resident of the Town of Belen, discovered a silver vein in the Manzano Mountains. On December 24, 1840 he appeared before Antonio Sandoval, Prefect of the Second District of New Mexico, and registered his discovery, which he named the Nuestra Señora de Guadalupe Mine. He described his claim as being located about two or three leagues south of the Town of Manzano and bounded:
On the north, by a cave at the foot of the Manzano Mountain; on the east, by two large pine trees; on the south, by a white bluff having the form of a pillar; and on the west, by a very thickly wooded arroyo.
He also advised Sandoval that, in consideration of their agreement to help him develop the mine, he had given Robert McKnight twelve of the twenty-four shares in his claim, and four shares to Manuel Ruelas. Sandoval, by instrument dated December 26, 1840, directed Garcia to present his petition to the Alcalde of Tome, Juan de Jesus Chaves, in order that he might grant him title to and place him in legal possession of the mine. The alcalde was also directed to forward the expediente of the proceedings to Sandoval for filing when he had completed the job. In compliance with such instructions, Chaves granted Garcia authority to proceed with the location and development of the mine within the peremptory ninety days’ period and directed him to report as soon as he had performed the preliminary shaft work required by law in order to complete his title to the mine. Garcia appeared before the Alcalde of Tome, Jose Pino, on October 10, 1842 and reported that he had completed the sinking of a one and a half vara wide shaft to a depth of ten varas, as required by the Mining Ordinance of 1783[1] and requested Pino to formally deliver possession of the mine to him. Since there was no Mining Deputation or Judge of the First Instance at Tome, Pino, in a decision dated two days later, held that he had delegated authority to place Garcia in possession of the mine. Proceeding on this premise, Chaves appointed Santiago Arechabala as mining expert to examine the shaft work as required by Section 4 of Chapter 6 of the Mining Ordinance.[2] Pino, Arechabala, and Pino’s attending witnesses went to the mine on October 21, 1842. Upon checking the shaft Arechabala found it had the depth and width prescribed by law, that the vein ran from north to south, had an inclination to the horizon of one vara in a vara, that the foot of the wall was sufficiently firm, and that the ores were hard with indications of silver. Based on these findings, Pino found that Garcia had discovered a mine and therefore, was entitled to three adjoining claims, which were surveyed from the mouth of the mine, as follows:
… north three hundred yards, which ended on the other side of an arroyo in front of the cave, between a juniper and a pine tree. Returning to the mouth of the mine, and proceeding towards the south, they measured the other three hundred varas which ended a little in front of a ridge adjoining a high pine tree close to a canada; the six hundred varas he was entitled to along the course of the vein having been measured, the party in interest applied for the width, twenty-five varas on the east, which were measured for him, and which ended at a pine tree; returning to the mouth of the mine and starting towards the west, there were measured for him one hundred end seventy five varas, which ended at a high ridge.…
Following the completion of the survey, Pino placed Garcia and his partner, Juan Turnet, in legal possession of the mine and its surrounding lands.
On November 4, 1832 Garcia appeared before Pino and requested a grant covering a tract of land surrounding his claims as a pasture and watering place for the animals used in working the mine, and a site for a smelter and housing for his miners. The requested tract was described as being bounded:
On the north, by the cienega; on the east by the Barranca Colorado; on the south, by the Ojo do Abudul; and on the west by the Ojo de Barreras.
He requested this grant under Section 3 of Chapter 13 of the Mining Ordinance.[3] Pino gave him the requested tract as an “absolute and perpetual” grant and placed him in possession of the premises on the same date. Four days later Garcia convoyed all his rights in and to the nine and “all that related thereto” to Pino for $340.00. Garcia acknowledged that the consideration consisted party of the cancellation of the debts which he owed to Pino for “juridical fees” and partly for money Pino had furnished him for a trip he planned to take to California. The mine was worked up to 1846 when the United States conquered New Mexico. At that time the shaft had boon sunk to a depth of about 70 feet.
A claim for the recognition of title to the mine and grant was never presented to the Surveyor General’s office for investigation and confirmation, but Edwardo Otero, who claimed an interest in them by inheritance from his grandfather, Miguel A. Otero, who in turn, had purchased the property from Garcia’s heirs and assigns, filed suit[4] for that purpose against the United States in the Court of Private Land Claims on October 2, 1892. He alleged that the two concessions jointly covered approximately 16,000 acres of land. The government filed a general answer putting the allegations contained in Otero’s petition in issue.
The case came up for trial on February 9, 1898 at which tine Otero introduced the testimonio of the two concessions, which was accepted as being genuine. He (also offered oral evidence connecting himself to the original grantee and showing that the mine had been occupied and worked for several years prior to the United States’ acquisition of New Mexico. There was also oral evidence tending to show that the mine had been registered in a book kept by the Alcalde of the Town of Tome. The United States argued that the grants were invalid on the ground that neither a prefect nor an alcalde had authority to make the concessions upon which Otero’s claim was based. On the subject of the alleged mine book, the government asserted that the plaintiffs oral testimony fell short of establishing that it was the type of registry required by the Mining Ordinance as construed by the United States Supreme Court in the Castillero case.[5] It also pointed out that up to the date of the American acquisition of New Mexico, the Mining Ordinance was regarded as being in force, and under said ordinance the proper tribunal before which mines could be denounced was the Mining Deputation. Otero sought to overcome this obstacle by arguing that Mining Deputations had been abolished by a decree of the Mexican Congress dated May 20, 1826, and its function devolved soon the local judicial officers such as prefects and alcaldes. In answer to this point, the government argued that the case came squarely within the rule established by the Castillero Case,[6] which held that mines were to be registered before the Deputation of Mining for the territory or district where the nine was situated, or the nearest one thereto, and Mexico “had always manifested an unwillingness to confer any more power upon the local government than was necessary to accomplish those objects.” Therefore, it concluded that neither the governor, a prefect, nor an alcalde had authority to grant title to a mine. The government also called the court’s attention to the fact that the circumstances surrounding the Nuestra Señora de Guadalupe Mine Grant in no respects differed from those involved in the case of Otero v. United States,[7] in which it had rejected the Nuestra Señora de los Dolores Mine Grant. It further argued that the claim for the lands appurtenant to the mine were not entitled to confirmation not only because it was made by an officer not entitled to act, but because the right to pasture granted to Garcia was a mere usfruct, which, under the decision of the Supreme Court in the Zia case,[8] terminated upon the United States’ acquisition of the area.
The court tendered a decision[9] rejecting the claim on September 4, 1899 on the ground that the decree of May 20, 1826, which abolished the Tribunal General of Mining, did not affect or mention the District or Territorial Mining Deputations. The court found that the Tribunal General of Mining was an entirely separate and distinct official body, and its dissolution had no effect on the procedure set up by the Mining Ordinance of 1783 for the obtaining of title to a mine. In closing, the court held that the registry of the mine should have been made before the nearest Mining Deputation, and the proceedings held in connection with attempted concession to Garcia and Turnet were void and conferred no rights upon the grantees. Otero did not appeal the decision to the United States Supreme Court and the claim was finally put to rest.
[1] Rockwell, A Compilation of Spanish and Mexican Law, 24‑111 (1851).
[2] Ibid., 50.
[3] Ibid., 79.
[4] Otero v. United States, No. 165 (Mss., Records of the Ct. Pvt. L. Cl.). A similar case was filed by Eloisa Bergere on March 3, 1093. She acquired her interest from her husband, A. M. Bergere, who had purchased the interest of Ambrosio Pino, a descendant of Jose Pino. Bergere v. United States, No. 206 (Mss., Records of the Ct. Pvt. L. Cl.). These two cases were consolidated for purposes of trial. 3 Journal 177 (Mss., Records of the CL. Pvt. L. Cl.).
[5] United States v Castillero, 2 Black (67 U.S.) 193 (1862).
[6] Ibid.
[7] Otero v. United States, No. 147 (Mss,, Records of the Ct, Pvt. L. Cl,).
[8] Pueblo of Zia v. United States, 168 U.S. 198 (1897)
[9] 4 Journal 120 (Mss., Records of the Ct. Pvt. L. Cl.).
Nuestra Senora de Guadalupe Mining Grant; J.J. Bowden's research on land grants in the southwest