by J. J. Bowden
Sabino Otero and the other heirs of Torivio Otero petitioned[1] Surveyor General John Wasson on December 1, 1879, seeking the confirmation of their title to two tracts of farm land and a house lot located at the Presidio de Tubac and estimated to contain 400 acres. In support of their claim, they filed the testimonio of a grant which showed that Torivio Otero appeared before the Commander of the Presidio of Tubac, Nicolas de la Erran, advised him that he wished to settle at the presidio,[2] and asked for a grant consisting of a house lot and farm tract in order to pursue his calling as an agriculturist. He pointed out that the presidio was being supplied, with grain which had to be transported a long distance at great expense; and, if land was granted to him and other industrious farmers, its needs could be satisfied locally, on January 10, 1789, Erran granted Otero, as a “first settler,” a house lot located on the south side of the presidio with a twenty vara frontage on the north side. He was also granted four suertes of farm land on both sides of the Santa Cruz River at a point located about an eighth of a league north of the presidio at a point here a little water ran. The farm tract measured 400 varas in each of the cardinal directions from the center point or 3,400 (sic) varas in circumference. The grant was made subject to the condition that Otero arm himself and remain ever ready to render service in defense against the Indians whenever called, build a house on the house lot within two years, and cultivate the farm land for four years and plant fruit trees. The second tract was based on a grant made to Jose Maria Martinez on November 7, 1838, by the Alcalde[3] of the Presidio of Tubac, Trinidad Yrigoyen, in accordance with Article 33 of the Special Regulation of Presidios.[4] The tract was located west of the river on the road to Tucson. The tract commenced “at the enclosure of Atanasio Otero”[5] and ran thence south twenty-eight cordeles of twenty-five[6] varas each to the foot of the mesita in front of a black mesquite. The tract was seven cordeles wide and extended from the House of Correction on the west to the river bank on the east. Martinez was placed in possession of the tract on November 7, 1838, subject to the same conditions as Otero. Martinez’s only son, Dario, sold the tract to Salimo Otero on June 29, 1880. Testimony presented to Wasson in connection with his investigation of the claim showed that the Oteros had claimed and occupied the tracts ever since they acquired them. By decision dated March 1, 1880,[7] Wasson found the title papers, which came from private sources, were genuine. He also noted that the archives of the Presidio of Tubac had been destroyed by the Apaches and, thus, accounted for the claimants’ inability to produce the expedientes of the two grants. Continuing, he stated that, aside from the titles given the grantees by the Spanish and Mexican governments, their descendants, by their long and undisputed possession and actual occupancy of the land, had acquired an interest which ought to be regarded sufficient to vest an absolute title to the property in them by prescription. A preliminary survey of the claim was made by Deputy Surveyor George J. Roskruge on April 12, 1881. His survey showed that the house lot covered 1.39 acres and the two farm tracts contained 184.31 acres located in Sections 5 and 8, Township 21 South, Range 13 East. Notwithstanding the bona fides of the claim, Congress failed to act on the matter.
Since the claim was not “duly recorded in the Archives of Mexico,” as requested by Article VI of the Gadsden Treaty[8] and the cost of prosecuting a suit for such a small amount of land would be prohibitive, the Oteros, on March 3, 1893, relinquished their rights to the 185.7 acre claim and requested that the land be restored to the public domain. Once the property had been restored, they applied for and obtained a patent covering 160 acres of such land under the homestead laws.[9]
[1] The Rancho de Otero Grant, No. 13 (Mss., Records of the S.G.A.). Separate petitions were filed by the Oteros for the two tracts and they were docketed as Claims 1 and 2; but, since they had a common ownership and were adjoining, Wasson consolidated them, and they were reported to Congress under Number 13.
[2] The Presidio of Tubac was established in 1752 to protect the missions, but in 1776 was moved farther north to Tucson. It was re‑established sometime prior to 1784 when a company of Pima warriors was stationed there when the Apaches threatened the continued extension of the mission of Tumacacori and San Xavier del Bac. while the Order of Pedro de Nava dated March 22, 1791, contemplated the granting of four square leagues of land to presidios, the Oteros asserted that Tubac had become “vested with nine square leagues of land in which was included the town, and which was held by said pueblo for distribution to the inhabitants thereof.” 2 Hodge, Handbook of American Indians North of Mexico 463, 830 (1960); Hall, The Laws of Mexico 41-42 (1885); and S. Exec. Doc. No. 81, 47th Cong., 1st Sess., 7 (1882). In addition to the Rancho de Otero Grant, there were two other claims presented to the Surveyor General’s office seeking the confirmation of grants located near the Presidio of Tubac. The first was filed by the heirs of Ignacio Cruz on April 13, 1886. The claim was based on a certified copy of a testimonio of a grant which showed that Ignacio Cruz appeared before the Alcalde of Tubac, Leon Erreras, and registered the suerte of tillable land located on the western edge of the presidio and on the road to Tumacacori, which he had possessed for some time. On November 8, 1825, Erreras admitted the petition and ordered a survey be made of the lands he had under actual cultivation. The survey described the tract as being seven cordeles of fifty varas each plus ten varas from north to south and thirty cordeles and ten varas from east to west. It was further described as being bounded on the north by the lands of Jose Antonio Gonzales, an invalid; on the east by an acequia which marked the boundary of a tract owned by Jose Sanchez; on the south by the lands of Jose Sanchez and Josefa de los Reyes, a widow; and on the west by the Tumacacori Road. The copy was certified to be a true copy by a Justice of the Peace of Tucson, Teodoro Ramirez, and was made to replace the original which had been mutilated by rats. Since there was no record of the grant in the Mexican Archives, the Surveyor General took no action on the claim. The Ignacio Cruz Grant, unnumbered (Mss., Records of the S.G.A.). The second claim was filed by Carmen de O’Campos on May 22, 1890 and sought the confirmation of a 26.45 acre tract of land located on the east bank of the Santa Cruz River in Sections 5 and 8, Township 21 South, Range 13 East. The claim was based on a deed dated May 2, 1832, whereby Juan Ortiz conveyed the tract to Juan B. Elias. No action was taken on this claim for the same reason. The Carmen de O’Campos claim, unnumbered (Mss., Records of the S.G.A.)
[3] By 1838 Tubac had lost something of the military character and was governed as a pueblo by municipal officers; hence, the grant was made to Martinez by its alcalde.
[4] Since Sonora had not adopted a colonization law, there was no way for settlers to secure grants within pueblos except under the Presidial Regulations of 1772 and 1791.
[5] Atanasio Otero apparently was Torivio Otero’s son.
[6] Cordeles were usually fifty varas in length.
[7] S. Exec. Doc. No. 81, 47th Cong, 1st Sess. 12‑14 (1882)
[8] 6 Miller, Treaties and Other International Acts of the United States of America 292‑302 (1942).
[9] Homestead Entry Phoenix 09196 (Miss., Records of the B.L.M.).
Rancho de Otero Grant; J.J. Bowden's research on land grants in the southwest.