Transcript:
by J. J. Bowden
Francisco Gonzales obtained a grant covering nine sitios of land known as Rancho de Casita in 1742. As Gonzales prospered and his herds increased, so did his need for additional grazing land. Therefore, his stepson, Jose Elias, petitioned Jose Maria Mendosa, Treasurer General of the State of Sonora, on May 6, 1841, seeking the resurvey of the Rancho de Casita and denouncing, for himself and his parents, the surplus land lying between the north boundary of the Rancho de Casita and the west boundary of the mission of Tumacacori. The application was granted by Mendosa on May 22, 1841, and Francisco Navamuel was commissioned six days later to make the surveys. He was directed to first determine the amount of “demacios” or surplus land located in the Rancho de Casita, if any, by using the old and constant rule of multiplying the number of varas forming the “diameters from north to south and from east to west and giving each sitio the area of twenty-five million square varas, and then to survey and sell the “remnant” land lying between the grant and the mission. Navamuel advised the applicants and adjoining landowners on October 2, 1841, of his intention to make the surveys on the twenty-fifth of that month. He also instructed the Alcalde of Imures, Jose Fraijo, to take the deposition of three impartial witnesses in order to determine whether or not the applicants needed the additional land and had the necessary animals to stock it. They stated that Gonzales and his wife had about 4,000 head of cattle and some sheep and goats. One of the witnesses, Francisco Armenta, said he knew they had that many cattle because he had participated in their round‑up. The minister of the mission, Fray Antonio Gonzales, appointed Bonillas to represent him at the survey because he could point out the boundaries of the mission’s land. On the appointed date, Navamuel resurveyed the Rancho do Casita and found that it contained about nine and a half sitios of land. Since the excess was within the tolerance permitted by law, no further action was necessary in regard to it. Next, he turned his attention to the surveying of the public land lying between the grant and the mission. He appointed Angel Olave and Miguel Apodaca as chainmen, Jose Fraijo as counter, and Jose Gallagos as compassman. Commencing at a cross monument marking the north boundary of the Rancho de Casita Grant, which was located on the public road to the Presidio of Tubac, he ran a line thence north along the road 295 cordeles or fifty varas each, to the place called Nogales, where the survey was suspended for the day due to darkness. On the following morning the line was extended north an additional 45 cordeles to a point where a monument was built. This point was located on the high road in a flat where the wide canyon that commenced upon the slope of the Pajarito mountains ended. The landmark of the Rancho de Calabazas was located about a thousand paces farther on, on a high hillock that sloped down on the other side of the canyon. Upon asking Elias how he wanted the land squared, he replied that he wanted twenty cordeles to the east; and thereupon they ran a line thence east twenty-two cordeles, guided by the compass, to the summit of a hillock upon which many oaks were growing upon its slopes. Returning to the monument by the road, a line was run thence west fifty cordeles. Since the terrain became extremely rough, further efforts to survey the line were terminated, and Navamuel estimated that an additional 150 cordeles would end at a point “where the Pajarito Mountains turned north near the place called Calaveras, said Pajarito Mountains having been crossed and within the land surveyed.” Returning to the cross monument marking the southern boundary of the premises, he surveyed a line east 22 cordeles to an oak tree on a hillock where a pile of stone was erected. Returning again to the cross, he measured and “estimated in several stretches of rough ground,” towards the west 200 cordeles which ended on a whitish ridge near the place called Planchas de Plata, and which ridge divided the streams that flowed towards the Rancho de Agua Caliente and from those that go towards Agua Zarca. The tract was described as containing 7 1/2 sitios of land. Upon the completion of the survey, Bonillas and Fraijo were appointed appraisers, and they appraised the tract at the minimum of price provided by law of 15 pesos per sitio or a total of 112 pesos 4 reales, since the property was all dry pasture land. Next Navamuel ordered that notice of the proposed sale of the premises he announced by the public crier of the Town of Magdalena, and bidders solicited, for a period of thirty consecutive days. The last publication was held on December 10, 1841. Notwithstanding the fact that no one made a higher offer, further proceedings were suspended on account of Elias’ absence. Upon his return on August 2, 1842, Elias approved the proceedings, and they were forwarded by Navamuel to the Treasurer General of Sonora, Ignacio Lopez, who, in the meantime, had succeeded Mendosa. Lopez referred the matter to the Superior Board of the Treasury, which, in turn requested an opinion from the Promoter Fiscal, Jose Maria Mendoza. On December 5, 1842, Mendoza noted that the tract measured 310 cordeles from south to north and 222 cordeles from east to west, which, reduced to varas, gave 188,700,000 square varas or seven and a half sitios and two caballerias “a little short.” Continuing, he pointed out that the appraisement took no account of the two short caballerias which would have a value of 5 reales 10 grains, at the rate of 15 pesos per sitio. Therefore, the value of the tract should be 113 pesos, 1 real and 10 grains. The opinion closed with the recommendation that the tract be sold to the highest bidder following three public offers. Lopez ordered the sale of the property by the Board of Sales at auction on January 5, 1843. After three public offers held on the 5th, 6th and 7th of January, the property was sold to Elias and his parents. The consideration was paid into the Treasury on January 7, 1843, and a title deed was issued to the purchasers by Mendoza. A memorandum of the sale also was noted in the Toma de Razon.
Elias’ widow and children petitioned[1] Surveyor General John Wasson on February 14, 1881, seeking the confirmation of the grant, which was known as Rancho los Nogales de Elias, under which they claimed an undivided one-half interest. A similar petition was filed by the Camou Brothers, a partnership, which claimed the other half under mesne conveyances from Jose Elias. Wasson issued an opinion[2] on February 25, 1881, in which he held that there was no question over the validity of the grant. He also held that the grant was properly recorded, notwithstanding the fact that the expediente was not in the archives. He found out that its absence had been accounted for by the claimants, who had shown that it had been sent to Mexico City in 1852. He also alleged that the grant was one of quantity and the location of its boundaries was dependent upon the location of the north boundary of the Rancho de Cosita Grant. Therefore, he recommended the confirmation of the portion of the grant to the Eliases and Camou Brothers, subject to the reservation of minerals by the United States. The grant was surveyed in December, 1891, by F. W. Oury. The survey showed that the grant contained a total area of 78,868.34 acres, of which 25,899.09 were located in the United States. Meanwhile, the Town of Nogales, Arizona, had been established in the grant and became a thriving border town. The inhabitants of the Town of Nogales caused the Attorney General of the United States to institute a suit[3] against Ainsa and the Camou Brothers in the Court of Private Land Claims under the provisions of Section 8 of the Act of March 1, 1891,[4] for quieting title to the land covering the townsite. The government asserted that the defendants’ title was open to question and the defendants should be required to show cause why the grant should not be declared null and void for the following reasons:
1. The land was the property of the Mexican nation, which in 1842‑1843 was a central or dictatorial form of government; and, therefore, officials of the State of Sonora had no authority to sell the land.
2. The sale was not approved by the Board of Treasury of either the national or state governments as required by law.
3. The judicial possession had never been delivered and the original grantees had not occupied the land as required by law.
4. The grant, which was one of quantity and therefore limited to the distance calls set forth in the grant papers, was located wholly within Mexico.
5. The claim had been satisfied fully by Mexico in 1886 as a result of the confirmation of the claimants’ title to seven and one-half sitios of land and the sale of an additional one and one-half sitios of land to them lying in the nine sitios of land located in the portion of the grant lying south of the International Boundary; and, by applying for and accepting such confirmation and sale, the claimants were estopped to say that any portion of the grant was in the United States.
6. The grant was not duly recorded as required by the Gadsden Treaty, since the expediente could not be found in the archives.
The defendants, in their answers, asserted that the grant covered all the land within its out boundaries. They practically admitted that if the grant was one of quantity, it would fall wholly within Mexico.[5]
The case went off on a question of fact as to the location of the property, and the other questions raised by the government were not considered. The court, on March 30, 1894, held[6] for the government, since the grant was one of quantity, and no portion of it was located in the United States. The defendants requested and obtained a rehearing, at which time they pointed out that the court was mistaken in its previous holding, and proved that a small portion of the grant would fall within the United States. The court reaffirmed its previous decision and rejected the grant, notwithstanding the fact a portion of the specified quantity covered thereby was located north of the International Boundary. It held that the grant was for a specified quantity of land and, until it was located within its out boundaries, it was a float, and had not been duly located as required by Article VI of the Gadsden Treaty.[7] The defendants promptly appealed the decision to the United States Supreme Court.
The Supreme Court, by decision[8] dated March 2, 1896, affirmed the Court of Private Land Claims’ decree, and held that where the expediente of a grant showed that what was directed to be appraised, what was directed to be sold, what was sold, what was paid for, and what purported to be granted was a definite quantity of land, and a survey was made indicating general boundaries in excess of that amount, then in such case the concession would be a floating grant within the larger tract, and must have been located prior to December 30, 1853, in order to give any right against the United States based on the Gadsden Treaty. Continuing, it noted that until such a floating grant was located title would not have been lawfully and regularly derived, as required by the Act of March 3, 1891[9] to give the Court of Private Land Claims jurisdiction. The court also held that the grant should be rejected on the ground that juridical possession of the grant had never been given. It found that such possession could not be delivered by the Treasurer General when not on the land, the coterminous proprietors had not been called to give their assent to the final act investing the grantees with title and possession, and there was no physical act on the part of the grantees accepting or taking possession of the premises.[10] Therefore, in closing, the court held:
In any view, no reason is perceived for disregarding the construction thus put upon the titulo, and, as the land purchased was not located at the date of the cession, the United States were not bound by the treaty to recognize the claim as of right, nor could the Court of Private Land Claims confirm it. The fact that a parallelogram of 340 cordeles by 222 cordeles, making 7‑1/2 sitios and 2 caballerias, if correctly measured from the initial point of Navamuel’s survey, would be partly within the territory of Arizona is immaterial.
Once the grant was rejected the citizens of Nogales applied for a patent covering their townsite. William T. Overton, Mayor of the Town of Nogales, received a patent on December 27, 1898, in trust for the several use and benefit of the occupants of the Townsite of Nogales covering all or a portion of Sections 17, 18, 19, and 20, Township 24 South, 11 Range 14 East.[11]
[1] The Rancho los Nogales de Elias Grant, No. 12 (Mss., Records of the S.G.A.).
[2] Ibid.
[3] United States v. Ainsa, No. 29 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.). This is one of the two suits brought by the government to question the validity of a Spanish or Mexican grant in the Southwest.
[4] Court of Private Land Claims Act, Chap. 539, Sec. 8, 26 Stat. 854 (1891).
[5] At this time it was believed that the cross monument which marked the common boundary between the Rancho do Casita and Rancho los Nogales de Elias Grants was located more than 340 cordeles south of the International Boundary.
[6] 1 Journal 58 (Mss., Records of the Ct. Pvt. L. Cl.., Ariz. Dist.).
[7] 6 Miller, Treaties and Other International Acts of the United States of America 293‑302 (1942)
[8] Ainsa v. United States, 161 U.S. 208 (1896).
[9] Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891).
[10] Caveat: A study of the Arizona Grants indicates that the custom and usages in Sonora in connection with sales under the Act of May 20, 1825 did not require the formal delivery of possession.
[11] C. G. Bazan to J.J.B., September 17, 1968.
Rancho los Nogales de Elias Grant; J.J. Bowden's research on land grants in the southwest.