by J. J. Bowden
Miguel and Santiago Montoya petitioned Governor Tomas Velez Cachupin calling his attention to the fact that their deceased father, Miguel Montoya, had owned the tract upon which the governor had established the Town of Santo Tomas de Abiquiú. They also reminded Cachupin that he had promised their father that he could register another tract at some other place in exchange for his lands at Abiquiú. Since their father had never exercised his right and their lands at Atrisco were no longer sufficient to support their large families and livestock, they requested Cachupin to grant them “the surplusage of Captain Antonio Baca, Salvador Jaramillo, and the settlers of the Puerco River, and which in the three directions adjoins the lands of the parties mentioned, and between the east and north faces the slope of the lands of the Pueblo of Zia, distant from that pueblo somewhat more than five leagues.…” On July 16, 1766 Cachupin ordered the Alcalde of the Queres Nation; Bartolome Fernandez, to give him a full report on the facts surrounding the requested lands. Upon investigating the application, Fernandez found that since the grants previously made to Baca and Jaramillo had not been “adjusted to the concession there was no unappropriated land with which to accommodate the Montoyas. Therefore, the Montoyas requested Fernandez, to examine another tract of land which was situated on the north side of the Jose Garcia Grant. Fernandez made the requested examination on September 22, 1766 and found the land to be vacant and sufficient to accommodate the applicants’ needs. After carefully considering the matter, Cachupin, on October 23, 1766, granted the Montoyas a grazing farm one league in length on every course at the place registered by them and adjoining the lands of Jose García. He also directed Fernandez to deliver royal possession of the premises to them. Pursuant to this order, Fernandez went to the grant and measured:
from east to west three thousand four hundred varas the distance from the Puerco River, which is the boundary on the east, to a small hill called the Angostura, which is the boundary on the west; and in order not to impinge upon the fields that are generally planted by the Navajo Apaches, and which are situated towards the west, I completed the remainder of the five thousand varas on the north side, the boundary being the point of a mesa called the Bosque Grande, and on the south the land of militia lieutenant Jose García. The said tract from east to west is three thousand four hundred varas, and from north to south six thousand six hundred varas.
Upon the completion of the survey, he performed the ceremonies necessary to place the Montoyas in possession of the grant. The expediente of the proceedings was returned to Cachupin, who approved them on February 14, 1767 directed that they be deposited n the Archives.[1] The grant was presented[2] to Surveyor General James K. Proudfit for investigation on November 10, 1874 by Samuel Ellison as attorney for the heirs and legal representatives of the original grantees. Without taking any oral testimony, Proudfit, on December 15, 1874 issued an opinion[3] in which he stated:
Having no doubt of the validity of this grant or of the good faith of the present claimants, I respectfully recommend that it be confirmed by Congress to the legal representatives of the original grantees, as bounded and described in the Act of Possession.
A preliminary survey of the grant was made by Deputy Surveyors Pradt & Watts in March, 1879 for 3,253.09 acres. Their survey showed the grant as an inverted right triangle with the legs measuring 3400 and 6600 varas and the Puerco River as the hypotenuse.[4]
As in the case of so many other claims approved by his predecessors, Surveyor General George W. Julian reexamined the grant and filed an unfavorable Supplemental Report.[5] In this report, which was dated January 19, 1838 Julian noted that the Act of Possession required the grantees to occupy and stock the grant within three months and comply with the conditions prescribed by the royal laws and, although the claimants had alleged that the grantees and their descendants and legal representatives had been in undisturbed possession since the date of 1766, there was no evidence in the case to that effect. He held that the performance of the condition of occupancy were necessary and could not be taken for granted or inferred from the mere performance of the ceremonies of the delivery of juridical possession. As a matter of fact, he doubted that the land had ever been occupied. He also called attention to the fact that there was another impediment against the recognition of the claim. He said:
For ought I know, no heirs and legal representatives are in existence in which case the land would escheat. The filing of the claim may have been merely a speculative venture of outside parties as in other cases known to this office and not inspired by anyone really interested in the case. Some responsible parties should have been named in the petition and their heirship or their right to file the claim should have been shown by satisfactory proof. It is not encumbent on this office to become a party to a fishing expedition or the exploiting of facts for unknown parties.[6]
Therefore, he recommended that the claim be rejected by Congress.
Since the claim had not been acted upon by Congress prior to the creation of the Court of Private Land Claims, Clinton M. Cotton, who in the meantime had purchased the grant, filed suit[7] against the United States for the recognition of his interest. In support of his suit, which was instituted on January 25, 1893, Cotton filed a schedule showing that the Montoyas conveyed the grant to Jose García on August 2, 1792, that the grant passed to his great granddaughter, who conveyed it to Gavino García on February 2, 1886, and he, in turn, conveyed the grant to Cotton on December 1, 1887. The original copy of the three deeds were also filed.
When the case came up for trial on November 28, 1893 Cotton introduced the grant papers, deed and oral evidence connecting himself with the original grantees by purchase, and showing that the grant had been occupied since an early date under the grant. The government’s only defense was that the deed to Jose García was spurious and, therefore, Cotton could not connect himself to the original grantees. In support of this contention, Will Tipton testified that the general appearance and color of the ink indicated that the deed was of a recent date, that the signature and rubric of Antonio de Armenta, the Alcalde before whom the conveyance purportedly was made, was not genuine, however, his main point was that the deed used the word “estado” which means “state” but was used the sense of “estate.” He pointed out that prior to the American occupation the word “estado” was never used as a reference to property but after 1848, corruptions of common law legal terminology were frequently used in Spanish instruments.
This led him to the conclusion that the deed was written sometime after the American occupation of New Mexico. By decision[8] dated December 1, 1893 the Court found the deed to be a forgery and since Cotton failed to connect himself in any way to the original grantees, it rejected the grant and dismissed his petition.
On May 6, 1895 Guadalupe Montoya, Francisco Montoya, and Dolores Montoya de Chaves, as the heirs of Miguel and Santiago Montoya, filed a suit[9] in the Court of Private Land Claims against the United States for the confirmation of the grant. The plaintiffs contended that the grant was complete and perfect on the date the United States acquired New Mexico and, therefore, was not barred by the two-year limitation period set forth in Section 12 of the Act of March 3, 1891.[10] When the case came up for trial on October 24, 1895, the government contended otherwise. By decree[11] dated November 23, 1896, the court confirmed the grant as a complete and perfect grant at the date of the Treaty of Guadalupe Hidalgo. Justice Henry C. Sluss wrote a dissenting opinion in which he stated that in his opinion the grant was a general grant and not merely an exchange. Therefore, in order for the grant to be complete and perfect, the plaintiff would have to prove that the conditions of settlement and occupancy had been performed. Notwithstanding Sluss’s dissent, the government did not appeal the decision.
The grant was resurveyed by Deputy Surveyor George H. Pradt in August, 1899 for 2,967.57 acres. Changes in the course of the Puerco River caused its reduction in size. A patent based on Pradt’s survey was issued to the heirs and. legal representatives of Miguel and Santiago Montoya on November 24, 1925.[12]
[1] Archive No. 576 (Mss., Records of the A. N. M.).
[2] The Bosque Grande Grant, No. 100 (Mss., Records of the S.G.N.M.).
[3] H. R. Exec. Doc. No. 62, 43d Cong., 2d Sess., 57 (1875).
[4] The Bosque Grande Grant, No. 100 (Mss., Records of the S.G.N.M.).
[5] Ibid.
[6] The Bosque Grande Grant, No. 100 (Mss., Records of the S.G.N.M.).
[7] Cotton v. United States, No. 66 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] 2 Journal 31 (Mss., Records of the Ct. Pvt. L, Cl.)
[9] Montoya v. United States, No. 272 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Court of Private Land Claims Act, Chap. 539, Sec. 12, 26 Stat. 854 (1891).
[11] 3 Journal 163 (Mss., Records of the Ct. Pvt. L. Cl.).
[12] The Bosque Grande Grant, No. 100 (Mss., Records of the S.G.N.M.).
Bosque Grande Grant; J.J. Bowden's research on land grants in the southwest