by J. J. Bowden
Antonio Baca petitioned Governor Manuel Portillo Urrisola stating that Governor Francisco Antonio Martin del Valle had granted him a tract of land in 1759 lying between the Mesa Blanca Canon on the north, the lands of the settlers of the Rio Puerco on the south, a high round hill on the east; and the high mountain where the Navajos planted on the west and that Alcalde Miguel Lucero had placed him in royal possession of the premises. However, about ten months later, Valle granted the same lands to Jose Garcia, Juan Tafoya, and Joaquin Mestas. Although Baca protested such action, Valle continuously put him off, saying he would return the lands to him. However, Valle took no action to set aside the grant to Garcia, Tafoya, and Mestas. Therefore, Baca requested Urrisola to assist him in regaining his property. In order to better acquaint himself with the facts surrounding Baca’s claim, Urrisola, by decree dated September 28, 1761 set the matter down for hearing and summoned the interested parties to appear and present their title papers. At the hearing, the testimony of a number of witnesses was taken and reduced to narrative form showed that about two months after the land had been granted to Baca, Valle annulled the concession for no apparent reason and directed Lucero to eject Baca. About eight months later, Valle “distributed” the premises to Garcia, Tafoya, and Mestas and they were placed in possession by the Alcalde of Zia, Carlos Mirabol. The manner in which the witnesses were sworn is interesting. The following portion of the Declaration of Miguel Lucero is an example:
At the village of Santa Fe, capitol of this new province of Mexico, on the third day of the month of October, year one thousand seven hundred and sixty-one, before me, Manuel Portillo Urrisola, civil and military governor and captain general for His Majesty of the said province, appeared Miguel Lucero, cited by Antonio Baca in his petition presented to me, whom I qualified, and who swore before God our Father, and upon the sign of the Holy Cross, under which oath he promised to state the truth, insofar as he may know it, and [then follows a narrative statement containing his testimony]; and that this is what he knows, and it is the truth under the oath he has taken, as he affirmed and ratified; and having read to him this his declaration, he stated his age to be fifty years; and although he is related to Antonio Baca, having been married to a sister of his, he had not on that account ignored the religious obligation of his oath.…[1]
Since the conflicting grants presented a difficult legal problem, Urrisola decided to refer the question to the Attorney General and Counselor for the Royal Audiencia, Juan Ignacio Garcia Villegos, a resident of the village of San Felipe el Rael in Nueva Viscaya, for his opinion as to what would be just. On January 25, 1762 Villegos held that the annulation and violent ejection of Baca from his grant without a hearing and due process was contrary to the law and required the immediate restitution of the land to him. Urrisol’s successor, Governor Tomas Velez Cachupin, arrived in Santa Fe on February 1, 1762, before any action could be taken on this opinion. After investigating the matter Cachupin affirmed Villegos’ opinion and issued a decree on July 20, 1762 in which he declared the Antonio Baca Grant to be valid. He also appointed Bernardo de Miera de Pacheco, the former Alcalde of Pecos, as a special commissioner to supervise the ejection of Garcia, Tafoya, and Mestas and redelivery of possession of the premises to Baca. Miera notified the adverse claimants of the governor’s decision and they agreed to peacefully surrender the premises provided Baca would agree to pay Mestas fifty reals for the improvements he had built on the land. Since Baca was willing to pay for the improvements, Miera delivered royal possession of the grant to him on August 3, 1762, and designated its boundaries as follows:
The first one was designated at the point of the high black tableland looking toward the southeast where the road from Zia to the Pueblo of Laguna crosses and the said tableland runs from the southeast to northwest, and at its base runs the Puerco River, the said black tableland lying the northern side of the said land and river, and follows the said course from southeast to northwest. It was ordered the second landmark be placed where the said tableland comes to a point here commencing a wide valley and meadow on said Puerco River, forming a low hill in the center of the prairie, the boundary of the land of Jose Garcia, and turning from the course on the north toward the south along the base of the Navajo Mountain, this mountain being the western side of the land aforesaid. I caused the third landmark to be placed upon a white tableland forming a bend extending in toward the said Navajo Mountain, and is the boundary of the tract of Juan Tafoya Altamirano, his livestock tract extending thereto according to the grant from the house of Jose Tafoya and turning from the white tableland from southwest to northwest, there was ordered to be placed the fourth landmark at the Agua Salada, where there is a perforated bluff which also the land of said Juan Tafoya extends; and it is to be noted that the lands of the said Juan Tafoya lies upon the south bank of the said Agua Salada Creek, and that of Antonio Baca on the north bank, and these two adjoining settlers shall have the use of the said water in equal proportions owing to its scarcity; and to the said perforated bluff the land of the settlers of the place Nuestra Señora de la Luz, San Fernando y San Blas also extends; and thence the said boundary turns off to where it intersects the first boundary mentioned on the road leading from Zia to Laguna and the rock ford.…[2]
The heirs and legal representatives of Antonio Baca through their attorney, Samuel Ellison, petitioned[3] Surveyor General James K. Proudfit on November 10, 1874 seeking the confirmation of the grant. As a result of his examination of the expediente and finding that it was genuine, Proudfit, in a brief opinion[4] dated December 17, 1874, recommended its confirmation by Congress to the legal representatives of Antonio Baca according to description and boundaries set forth in the Act of Possession. A preliminary survey of the grant was made in October, 1877, by Deputy Surveyor S. C. McElroy for 46,653.03 acres.[5]
Since Congress had not acted upon the claim, surveyor General George W. Julian re‑examined it pursuant to the instructions[6] he had received from Commissioner William A. J. Sparks dated December 11, 1885. In a Supplemental Opinion[7] dated January 20, 1888, Julian pointed out while there was no room for controversy as to the validity of the grant, there were two questions touching on the rights of the claimants which he felt obligated to discuss. First, he pointed out that the petition had been filed by the heirs and legal representatives of Antonio Baca without identifying the heirs by name or furnishing any proof or proceedings connecting the legal representatives to Baca. Thus, he could only speculate as to who the interested parties really were. He also noted that the claim could have been filed by a group of speculators or adventurers who sought to make his office as “a football for their purposes.” Second, he called attention to the fact that there was no evidence that the grantee had occupied the grant as required by the Spanish law. He contended that although the performance of the ceremony of delivery of possession to the grantee was a condition of title, it would not dispense with the requirement that the land be occupied and used as required by Spanish law. Therefore, clear proof that the grant continuously had been occupied for a period of four years would have to be shown in order to establish the type of title which the United States was obligated to respect. Based upon these defects, Julian held the grant to be invalid and recommended its rejection.
With so much agitation for the creation of a special commission or court to adjudicate the validity of private land claims in the Southwest, it is not surprising that Congress took no action on the claim. After the establishment of the Court of Private Land Claims, Mariano S. Otero sued[8] the United States in that court seeking the recognition of the grant. In his petition, which was filed on February 1, 1893 Otero alleged that he was the legal representative of the original grantee. The government recognized that the grant papers were genuine but contended that Otero had not shown a sufficient interest in the grant to maintain the action. When the case came up for trial on August 14, 1894 Otero introduced mesne conveyances establishing an unbroken chain of title back to Guadalupe Sarracino. It seems that in 1884 Sarracino had come from old Mexico bringing with him a paper purporting to be a deed from the heirs of Antonio Baca to Rafael Sarracino. A transfer of the grant by Rafael to Guadalupe, who was his adopted nephew, was endorsed on the deed. This instrument had been recorded in Bernalillo County[9] and introduced in an 1885 district court suit[10] in which Guadalupe Sarracino’s title to the grant was quieted. However, the document was later lost. The government objected to the introduction of a copy of this instrument which had been certified by the County Clerk of Bernalillo County on the ground that it had not been acknowledged and, therefore, was not entitled to be recorded. It also argued that the disposition of Surveyor General Henry M. Atkinson in the Sarracino case, wherein he stated that he had compared the signatures on the deed with other papers in the archives and believed it to be genuine, should not be received into evidence since the government was not a party to the suit and had no opportunity to cross‑examine him. The government pointed out that the United States Supreme Court in the Astiazaran case[11] had held that local courts had no jurisdiction over the adjudication of the validity of private land claims. Oral testimony presented by the government showed that the grant had not been occupied between 1768 and 1884, and, therefore, the deed should not be admitted without some direct proof or other corroborative evidence of its execution. The court sustained the government’s objection to the admission of the deposition but accepted the deed. By decision[12] dated February 14, 1895 the court confirmed the grant to the extent of eleven leagues to be selected by Otero within the boundaries set out in the Act of Possession of August 3, 1767. The government appealed the decision but later filed a motion asking the Supreme Court to dismiss the appeal. Pursuant to the government’s motion, the Supreme Court, on April 8, 1897 ordered the appeal to be dismissed.[13] The grant was surveyed by Deputy Surveyor John H. Walker in November and December, 1898 for 51,772.54 acres. Since the survey showed that the grant exceeded eleven square leagues or 47,743 acres, Otero was ordered to select his eleven square leagues of land within the grant. However, the survey also showed that the grant conflicted with 8,843.25 acres covered by the Town of Cebolleta Grant and 125.38 acres of the Bernabe Montano Grant.[14] In view of the grant’s containing only 42,800.91 net acres, Otero refused to obtain a private survey upon which to make his selection. Therefore, the court on August 13, 1900 rejected the survey and ordered Walker to resurvey the grant with its southern boundary located at the perforated bluff, which was situated near meander corners 45 and 46 on Walker’s south line.[15] Walker resurveyed the grant pursuant to the instructions contained in the courts decree for 47,196.496 acres of which 8,012.05 acres conflicted with the Cebolleta Grant. The grant was patented[16] on November 10, 1902.
[1] Archive No. 105 (Mss., Records of the A.N.M.).
[2] Ibid
[3] The Antonio Baca Grant, No. 101 (Mss., Records of the S.G.N.M.).
[4] H. R. Exec. Doc. No. 62, 43d Cong.; 2d Sess., 85‑85 (1875).
[5] The Antonio Baca Grant, No. 101 (Mss., Records of the S.G.N.M.).
[6] S. Exec. Doc. No. 113, 49th Cong., 2d Sess., 2 (1887).
[7] The Antonio Baca Grant, No. 101 (Mss., Records of the S.G.N.M.).
[8] Otero v. United States, No. 70 (Mss., Records of the Ct, Pvt. L. Cl.).
[9] Deed Record 397 (Mss., Records of the County Clerk’s Office, Albuquerque, New Mexico).
[10] Sarracino v. Baca, No. 1383 (Mss., Records of the District Clerk’s Office, Albuquerque, New Mexico).
[11] Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80 (1893).
[12] 2 Journal 294 (Mss., Records of the CL. Pvt. L.C1.).
[13] United States v. Otero, 17 S. Ct. 1001, 41 L. Ed. 1187 (mem.) (1897).
[14] The Antonio Baca Grant, No. 101 (Mss., Records of the S.G.N.M.).
[15] 4 Journal 189 (Mss., Records of the Ct. Pvt. L. Cl.).
[16] The Antonio Baca Grant, No. 101 (Mss., Records of the S.G.N.M.).
Antonio Baca Grant; J.J. Bowden's research on land grants in the southwest