by J. J. Bowden
Thomas C. Gutierrez and the sixteen other heirs and lineal descendants of Clemente Gutierrez petitioned[1] Surveyor General George W. Julian on September 10, 1877 seeking the confirmation of their claim to the Pajarito Grant, which they described as being bounded:
On the north, by the Town of Atrisco Grant; on the east, by the Rio Grande; on the south, by the sitio or place called Los Padillas; and on the west, by the Rio Puerco.
The petitioners claimed to own the tract by reason of a grant made by Spain sometime prior to 1746 to Josefa Baca as evidenced by her will[2] which was among the archives turned over to the United States when General Stephen Watts Kearney conquered New Mexico. Josefa Baca’s son, Antonio Baca, acquired an undivided interest in the grant as a devisee under such will and purchased the balance of the grant from her other children and devisees. Clemente Gutierrez purchased[3] the grant from Antonio Baca on May 10, 1785. Oral testimony presented by the claimants at the hearing of the claim held by Julian was consistent with and supported the documentary evidence. This oral testimony showed that the claimants and their predecessors had held uninterrupted and undisputed possession of the Pajarito Grant from as far back as 1746 and had exercised complete ownership over the promises. They had built houses and fences, planted orchards and vineyards, constructed an extensive irrigation system and cultivated the lands during this entire period without anyone ever questioning their right or title to the tract. Thus, the claim was based upon a presumed grant supported by a continuous claim of title and peaceful possession for more than a century prior to the United States’ acquisition of New Mexico.
In his report[4] recommending the confirmation of the grant dated December 30, 1887, Julian stated that he had only one question concerning the validity of the grant. This was that whether or not his office had authority to recommend the confirmation of a claim when there was no evidence that a grant had actually been made by the officials of either Spain or Mexico. He believed that as a result of their long possession and use of the premises, it would be possible for the claimants to acquire all the land covered by the Pajarito Grant under the homestead laws. However, since this would entail considerable trouble and expense, he did not believe the claimants should be so burdened if they had a right to the lands under their muniment of title. Moreover, if the claimants attempted to perfect a title under the homestead laws, it would amount to a confession that their title was invalid and would thereby tempt others to assert similar claims of equal right to the land. Julian stated that while the question thus presented was novel, he believed that he had jurisdiction over the claim. He found no reason why the claimants should not be protected since he was confident that Spain and Mexico would have recognized their title if New Mexico had not been ceded to the United States. If the prior sovereigns would have confirmed the title based on the evidence before him, he was of the opinion that the Treaty of Guadalupe Hidalgo protected the interests of the claimants and obligated the United States to do what those countries undoubtedly would have done. Julian was of the opinion that it would be unfair and unjust to fail to recognize the grant for such action would undoubtedly expose the claimants to the unending strife and litigation which would certainly grow out of the fog of confusion in which their title was then surrounded. In closing, Julian stated that the confirmation of the claim by Congress would not only be a matter of justice to the claimants but would tend to preserve the peace in the town of Pajarito which was inhabited primarily by the claimants and their peons.
Since no further action was taken on the claim prior to 1891, the Gutierrezes turned to the Court of Private Land Claims for relief. On February 7, 1893, they filed suit[5] in that tribunal seeking the confirmation of the grant, which they alleged contained about 40,000 acres. The government filed a general answer putting the allegations contained in the plaintiffs’ petition in issue. The case came up for trial on September 5, 1894 at which time the plaintiffs introduced twenty-three Spanish documents from the archives connecting Clemente Gutierrez to Josefa Baca and showing the continuous possession and occupation of the premises under the claim of a grant to Josefa Baca since 1746. The genuineness of these documents was conclusively shown. Oral evidence was also introduced by the plaintiffs to prove the possession of the grant by them and their predecessors for the previous hundred years and connecting themselves to Clemente Gutierrez. Since the government offered no special defense or reason why the grant should not be recognized and confirmed, the court, by decree[6] dated September 8, 1894, held there was a presumption that a grant had been made to Josefa Baca as a result of the long possession of the premises by her and her heirs and assigns and also that the tract had been acquired by the plaintiffs by prescription. The government did not appeal the decision. Once the decree became final a contract was awarded to Deputy Surveyor George H. Pradt for the surveying of the grant. The survey was made between September 23 and April 19, 1898 for 28,724.22 acres. The grant was patented on November 27, 1914.[7]
[1] The Pajarito Grant, No. 157 (Mss., Records of the S.G.N.M.).
[2] Archive No. 94 (Mss., Records of the A.N.M.).
[3] S. Exec. Doc. No. 89, 50th Cong., 2d Sess., 43‑44 (1889).
[4] Ibid., 59.
[5] Gutierrez v. United States, No. 73 (Mss. Records of the Ct. Pvt. L. Cl.).
[6] 2 Journal 186‑188 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] The Pajarito Grant, No. 157 (Mss., Records of the S.G.N.M.).
Pajarito Grant; J.J. Bowden's research on land grants in the southwest.