by J. J. Bowden
Felipe Gutierrez, a soldier and reconqueror of New Mexico, appeared before Governor Pedro Rodriguez Cubero and asked for a grant covering a tract of land situated on the east se of the Rio Grande in Weaver’s Bend and in front of Captain Diego Montoya’s house, which he estimated to contain an area of one and a half leagues. As justification for his application, he advised Cubero that he needed the premises in order to support his family and animals. Cubero granted Gutierrez’s prayer on December 3, 1701 and ordered the Alcalde of Bernalillo to place him in royal possession of the requested tract. Since his military duties had prevented him from occupying the land, Gutierrez understandably was worried that he may have forfeited the grant as a result of his failure to receive juridical possession and comply with the conditions of settlement prescribed by Spanish law. Therefore, he petitioned Cubero’s successor, Governor Diego do Vargas, seeking the revalidation of the grant. By decree dated January 21, 1704, Vargas granted the desired relief and directed the Alcalde of Bernalillo to survey and deliver royal possession of the premises to him. Nearly four years later, Gutierrez asked Martin Hurtado, the Alcalde of Bernalillo, to proceed with the formal delivery of possession. On January 2, 1708, Hurtado performed the, requested ritual and designated the following natural objects as the boundaries of the grant:
On the north, a sand hill which is the boundary line of Captain Juan Gonzales; on the east, some high hills; on the south, a small grove; and or the west, the Rio Grande.[1]
By 1776 the Town of Bernalillo had grown up around Gutierrez’s ranch and ha a total population of eighty-one persons.[2] By the time the United States acquired New Mexico Bernalillo had become one of the best built towns in the Territory[3] and exhibited signs of wealth.[4] Phillip St. George Cook, while leading the Mormon Battalion to California passed through Bernalillo and described it as being:
… the prettiest village in the Territory. Its view, as we approached, was refreshing; green meadows, good square houses, and a church, cotton‑woods, vineyards, orchards ‑ these jealously walled in; and there were numbers of small fat horses grazing. The people seemed of superior class handsomer and cleaner. But parts of this bottom had sand hillocks, with their peculiar arid growths.[5]
On February 19, 1874, J. L. Perea, one of the heirs of Luis Garcia, petitioned[6] Surveyor General James K. Proudfit seeking the confirmation of the grant. In support of his claim he filed a Spanish document:, which purported to be a certified copy of a certified copy of the testimonio of the grant. This instrument showed that on September 8, 1742 Gaspar Domingo de Mendoza, the Governor of New Mexico, ordered the Alcalde of Albuquerque to investigate the occupation of the grant in order to determine if it had been abandoned and, if not, to give a copy of the proceedings to captain Luis Garcia “to whom this new grant has been lately made.” In response to the governor’s order, Alcalde Antonio Ulibarri issued Garcia a certified copy of the testimonio of the grant and Mendoza’s Decree. Since this document had become “very much damaged by time and bad preservation,” Baltazar Perea made a certified copy of Ulibarri’s certified copy for the protection and benefit of the “land holders of Bernalillo.” Perea stated:
… that the land, granted, as above set forth, to said Luis Garcia has ever since been in the possession of the said Luis Garcia and those claiming under him, without any objection, opposition, or interruption from any other claimants or parties whatsoever, and that they now are in quiet and peaceable possession of the same.[7]
The testimony of two witnesses was also given, which showed that the Town of Bernalillo had been in existence for many years prior to the acquisition of New Mexico by the United States, On the following day, Proudfit issued a decision in which he stated:
Under the instructions of this office by the Commissioner of the General Land Office, of date August 21, 1854, relating to such villages as this of Bernalillo, as follows… “the fact being proved to you of the existence of such city, town or village at the period when the United States took possession, may be considered by you as prima facie evidence of a grant to such corporation or to the individuals under whom the lot‑holders claim,” I consider such proof sufficient, and so respectfully recommend to Congress that this claim for lands be confirmed to the present owners and people of the village of Bernalillo according to the boundaries set forth in the Act of Possession, executed in January,1708, to Gutierrez … . [8]
A preliminary survey of the grant was made in October, 177 by Deputy Surveyor Stephen G. McElroy for 11,674.37 acres.
Since Congress had taken no action on the claim, heirs turned to the Court of Private Land Claims for relief. On February 28, 1893 Pedro Perea, for himself and on behalf of the several hundred inhabitants of the Town of Bernalillo, filed suit[9] seeking the confirmation of his interest in the premises based on the grant which allegedly td been made to Luis Garcia by Governor Mendoza on September 8, 1742. Three days later he filed a second suit[10] for himself and on behalf of the several hundred inhabitants of the Town of Bernalillo who claimed interests in the grant as heirs and legal representatives of Felipe Gutierrez. Manuel Gurule filed a third suit[11] n March 2, 1893, seeking the confirmation of his interest in the grant as an heir of Felipe Gutierrez. A similar suit[12] was filed on the following day by Jose M. Chaves. Since causes numbered 208, 217, and 258 were based upon the grant to Felipe Gutierrez the Court consolidated[13] them for purposes of trial. The consolidated case came up for trial on November 9, 1896, at which time Gurule dismissed[14] his suit. During the trial of the case the plaintiffs offered their muniment of title and evidence that Baltazar Perea was, at that time, an Alcalde and his signature was genuine. The government objected to its introduction on the ground that the document was merely a copy of a copy, that a proper foundation had not been laid, and the plaintiffs had not proven that Baltazar Perea had authority to certify the instrument. It also contended that the grant, if confirmed, should be limited to one and a half leagues of land as that was the quantity mentioned in the grant papers. The government, in its argument, contended that it had a serious doubt that a certified copy made by an alcalde could have the dignity of an original grant. It argued the acceptance of such a copy would “open the door for fraud and practically admits the right of an alcalde to extend boundaries or make grants de novo, provided only that he certify that the grant he manufactures is a copy of a mutilated instrument.”
On June 2, 1897, the court handed its decision[15] confirming the grant to Pedro Perea for himself and all other owners of the grant in accordance with the boundaries set forth in the Act of Possession. The court noted that it had been conceded that a judgment for the plaintiffs should be entered if their muniments of title were admissible. Continuing, it found that there was no royal notary in New Mexico in 1826 and it was the custom in New Mexico for an alcalde to give certified copies of legal documents to perpetuate them even though he might not have had. express authority to perform such functions. The government filed a motion for a rehearing. The motion was overruled on September 28, 1897 and Justice William M. Murray wrote a dissenting opinion adopting the government’s position. Notwithstanding the fact the plaintiffs had stipulated with the government concerning the location of the boundaries of the grant, and thus restricted it to a relatively small tract, the government’s attorney recommended[16] that the decision be appealed. However, in view of the plaintiff’s equities, the Justice Department did not perfect the appeal. Once the grant had been confirmed, Perea dismissed[17] his suit in cause No. 146 which was based on the alleged grant to Luis Garcia.
After the decision became final, the Surveyor General’s office awarded a contract to Deputy Surveyor John H. Walker for the survey of the grant. Walker surveyed the premises between October 24 and 27, 1898 for 3,404.67 acres. A patent for that amount of land was issued on November 19, 1900.[18].
[1] S. Exec. Doc. No. 38, 43d. Cong. , 1st Sess. 5‑6 (1874).
[2] Adams and Chaves, The Missions of New Mexico, 144 (1956).
[3] Calvin, Lieutenant Emory Reports, 67 (1951).
[4] Keleher, Abert’s New Mexico Report 72 (1962).
[5] S. Exec. Doc. 2, 31st Cong., Spec. Sess., 38 (1849).
[6] The Town of Bernalillo Grant, No. 83 (Mss., Records of the S.G.N.M.).
[7] S. Exec. Doc. No. 38, 43d Cong., 1st Sess., 2 (1874).
[8] lbid., 9.
[9] Perea v. United States, No. 146 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Perea v. United States, No. 258 (Mss., Records of the Ct. Pvt. L. Cl.).
[11] Gurule v. United States, No. 208 (Mss., Records of the Ct. Pvt. L. Cl.).
[12] Chaves v. United States, No. 217 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] 2 Journal 272 (Mss., Records of the Ct. Pvt. L. Cl.).
[14] 3 Journal 106 (Mss., Records of the Ct. Pvt. L. Cl.).
[15] 3 Journal 258 (Mss., Records of the Ct. Pvt. L. Cl.).
[16] Report of the United States Attorney dated November 20, 1897, in the case Perea v United States (Mss., Records of the General Services Administration, National Archives, Washington, D. C.), Record Group, Year File 9865‑92.
[17]3 Journal 226 (Mss., Records of the Ct. Pvt. L. Cl.).
[18] The Town of Bernalillo Grant, No. 83 (Mss., Records of the S.G.N.M.).
Town of Bernalillo Grant; J.J. Bowden's research on land grants