by J. J. Bowden
Pedro Vigil de Santillan, for himself and on behalf of his nephews, Juan Bautista and Cristoval Vigil, petitioned Governor Domingo de Mendoza for a grant covering a tract of vacant land adjacent to the Pueblo of Taos, and described as being bounded:
On the north, the Rio Colorado; on the east, the lands of the Pueblo of Taos and the mountain; on the south, the lands of Sebastian Martin; and on the west, the bed of the river.
He called attention to the fact that while the tract, which was known as Los Luceros, had been granted previously to General Felix Martinez, a former Governor of New Mexico, it had been forfeited when he failed to settle upon it within the time prescribed by law. Vigil also pointed out that he had faithfully served the King for twenty years. During this period he had lived in a small house and supported his large family on his meager salary. He had even been able to accumulate a small herd of livestock which, since he was without land, he had pastured on rented land. However, since his retirement from service he had encountered hard times and was forced to finance the needs of his family by borrowing, and the landowner upon whose lands his stock were being pastured had terminated the arrangement. Therefore, finding himself with no place to pasture his stock and no land to support his family, he prayed that he and his nephews, who were in a similar situation, be granted the requested lands for colonization purposes. Mendoza granted the land to the three petitioners on August 9, 1742 and directed the Chief Alcalde of Taos to deliver possession of the tract, subject to the terms and conditions required by Spanish Law and. particularly those which prohibited injuries to third parties. To guarantee that the rights of the Indians were not prejudiced, the grantees were instructed not to erect their houses within two leagues of the Pueblo. The Alcalde was also instructed to fix the boundaries of the grant as follows:
On the north, to the Arroyo Hondo, and two leagues in latitude shall be given him in the direction of the Del Norte River and towards the mountains to its summit.
In compliance with the governor’s instructions, Alcalde Francisco Guerrero summoned the officials of the Pueblo of Taos on August 12, 1742 and notified them of the grant. After measuring off 5,000 varas from the cross in the cemetery plus an additional 100 varas for good measure to insure there would be no damages to the Pueblo, the Alcalde fixed the location of the east boundary of the Los Luceros Grant at that point. The Indians agreed that the grant would not injure them in any manner. Next he showed the grant to Sebastian Martin, who likewise was satisfied it was not prejudicial to his rights. Thereafter the Alcalde:
… took each of the petitioners personally by the hand and walked with them over the tract, and gave royal possession in the name of his Majesty (whom may God preserve!), with the required conditions contained in said grant …
The expediente of the grant was returned to Mendoza, who on September 3, 1742, deposited it in the Spanish Archives at Santa Fe.[1]
The Vigils promptly settled upon the grant and their descendants were still living there when Antoine Leroux, the famous mountain man, married Juana Caterina Vigil, a granddaughter of Jean Bautista Vigil, on November 4, 1833. He moved into the family hacienda on the Luceros River and became the principal owner and manager of the grant. Thereafter, it was usually referred to as the Antoine Leroux Grant.[2] While Leroux’s life as a mountain man and trapper had been extremely colorful prior to his marriage, he did not let his new obligations as a haciendero tie him down. Between 1833 and 1840 he “went discovering and exploring all over the West”. As the market for furs declined, he began devoting more and more time to his ranching activities. By the time the United States conquered New Mexico, he was probably the best informed and most experienced guide in the Southwest. Naturally the United States could use his services, and during the next decade he served as guide for four major expeditions between Santa Fe and California as well as a number of minor expeditions against the Indians. Thus, he was too preoccupied to present his claim to the Surveyor General’s Office prior to 1857.[3] On May 21, 1857 Leroux filed the testimonio of the grant, which he had obtained from Juan Bautista Vigil, and petitioned[4] Surveyor General William Pelham seeking the confirmation of the grant, as described in the petition, decree and Act of Possession contained in the testimonio as “compared and reconciled one with the other; the said piece of land is described and bounded as follows”:
That their house or habitation should be built two leagues, more or less, from the Pueblo of Taos, should be bounded on the north by the Arroyo Hondo, on the west by a line running in a northerly and southerly direction, two leagues west of the house or habitation aforesaid, or four leagues west of a line over one hundred varas west of the cemetery of the church of said Pueblo, and running parallel from north to south with the line running in the same direction on the west of said cemetery; on the east by the west line of said Pueblo, as above described, and by the summit of the mountains on either side of the extent of said Pueblo line, and on the south by lands of Sebastian Martin.
Due to the great number of descendants and the loss of many of the intervening title papers in the Taos Rebellion, Leroux asked that the grant be conferred to the legal representatives of the original grantees.
The Indians of the Pueblo of Taos protested the confirmation of the grant but withdrew their objection when the “legal representatives of the original grantees” conveyed the lands occupied by them to the Pueblo of Taos. Once this obstacle had been removed, Surveyor General A. P. Wilbar proceeded with the investigation of the claim. On October 5, 1861 he issued a decision[5] in which he stated that the title papers constituting the claim appeared to be genuine and complete and, since the legal representatives of the original grantees had been in possession of the grant from the date of its inception, he recommended its confirmation by Congress as a valid grant.
The claim was referred to the House Committee on Private Land Claims, which on February 10, 1868, also recommended[6] its confirmation. The Committee, while noting that the 12th Section of the National Colonization Law of August 10, 1824[7] and the Regulations of 1828[8] limited the amount of public land which could be legally granted to a single individual to eleven square leagues, pointed out that since the grant was granted prior to 1824 it was not affected thereby even if it contained more than eleven leagues. Congress acted upon the report less than a year later and confirmed the claim by the Act of March 3, 1869.[9] One would think that the troubles of the grant owners were now over. However, this was not the case, for the act was merely a quit‑claim of interests of the United States in the lands covered by the grant. Since the description contained in the grant was ambiguous its real extent became a matter of serious controversy for the next forty-two years.
Notwithstanding the fact that Section 2 of the Act of March 3, 1869[10] required the Commissioner of the General Land Office to cause the grant to be surveyed and platted “without unreasonable delay”, no survey was made until July, 1877. The survey finally was made by Deputy Surveyors Sawyer & McElroy and showed that the grant covered 126,024.53 acres. This survey described the grant as being bounded:
On the north, by the Arroyo Hondo; on the east, by the Pueblo of Taos; on the south, by the Sebastian Martin Grant; and on the west, by a line located four leagues and one hundred varas west of the cross in the cemetery in the Pueblo of Taos (which was located near the center of the Pueblo league).
This survey showed that the grant conflicted with the Rancho de Rio Grande, Town of Cieneguilla, Antonio Martinez and Pueblo of Picuris Grants. The owners of the grant protested the approval of the survey on the grounds that notwithstanding the description contained in Leroux’s petition, the east boundary of the grant should have been located along the summit of the Sangre de Cristo Mountains. This just could not be true for to do so would cause the grant to include all of the Pueblo of Taos Grant, Since the description contained in the Decree of Grant dated April 9, 1742 was ambiguous and subject to a number of radically different interpretations,
Surveyor General Henry M. Atkinson ordered[11] Deputy Surveyor W. H. McBroom to fully investigate the boundaries of the grant. After thoroughly inspecting the premises on the ground and taking a great deal of testimony, McBroom in his report[12] dated October 1, 1880 concluded that the Sawyer & McElroy Survey was completely erroneous. First he found that the lands of Sebastian Martin mentioned in the grant papers were not the Sebastian Martin Grant located some 22 miles southwest of Taos but was a small tract of land located just west of the northwest corner of the Pueblo league. This tract had been granted to Jose Dominguez in 1702 and sold to Martin in 1723. Thus, being adjacent to the Pueblo league, it would be the logical one to be referred to and not the more distant tract. This conclusion would be further supported by the fact that Vigil had requested a tract of land to graze his small herds upon and would have no occasion to need a tract some twenty-five miles in length. Once he had discovered that the grant was located entirely north of the Pueblo league, he turned his attention to an interpretation of the ambiguous descriptions in the grant papers in order to determine the location of the other boundaries. There was little doubt that while the Vigils had sought the Rio Colorado as their northern boundary, the Governor had fixed it at the Arroyo Hondo. It was also clear that the only variance between the petition and the granting decree concerned the location of the eastern boundary. The decree fixed its location at the summit of the mountains instead of the ambiguous call for the mountains contained in the petition. The location of the western boundary also gave him considerable trouble. However, he came to the conclusion that it should be located two leagues west of Vigil’s house, which the evidence indicated was located on the north bank of the Lucero River and a little less than two leagues north of Taos. According to McBroom, the grant would be about twelve miles from east to west and four miles from north to south and contain about 30,000 acres.
As a result of McBroom’s investigation, the Sawyer & McElroy Survey was rejected and Deputy Surveyor Charles L. Ratliff was awarded a contract to resurvey the premises. Ratliff attempted to resurvey the grant but finally gave up in despair, advising Surveyor General George W. Julian that in his opinion the location of the southern and western boundaries of the grant were not only “utterly impracticable, but impossible”. As a result of Ratliff’s failure to locate the boundaries, Julian wrote a very vindictive report[13] to the Commissioner of the General Land Office on April 30, 1,888 in which he states:
A more particular examination of the records of this office shows it (the Sawyer & McElroy Survey) to be shockingly indefensible and glaringly fraudulent …nothing short of the most incredible ignorance or the most shameless dishonesty can account for this survey …
I only add that this grant would never have been approved by the Surveyor General if the evidence before him had been carefully scrutinized. It is not shown that the grantee ever occupied the land or complied with the conditions of the grant …
Indeed, the grant, from the beginning, seems to have been the spoil of adventurers and speculators, who have availed themselves of the machinery of this office in appropriating to their own use a large body of land without a shadow of right to any of it, except the comparatively small tract lying north of and adjoining the lands of Sebastian Martinez, the north boundary of which as shown cannot be located; and of this comparatively small tract fully three fourths are covered by the survey of the Antonio Martinez grant. In view of the facts stated, I have no hesitation in recommending the restoration of the lands included in this grant to the public domain for the simple reason that two of the boundaries cannot be ascertained.[14]
Julian’s report would probably have been even more venomous had he known that someone (obviously an interested party) had tampered with the description contained in Vigil’s original petition to the Governor in 1742. It apparently originally read “on the east, the lands of the Pueblo and Sebastian Martin” but had been changed by erasing the words “Martin por” and changing the word “Sebastian” to “la curra”. Thus, after the change, it read “on the east, the land of the Pueblo and the mountains”.
Commissioner Silas Lamoraux carefully considered Julian’s unfavorable report and in an opinion dated May 29, 1894 decided:
In cases of doubt, grants should be construed strictly in favor of the government, and where as in this case, the grant has been confirmed by Congress, it should, if possible, be so construed as to give effect to the will of the legislators. I cannot consent to declare a forfeiture of a confirmed grant when a reasonable interpretation will give it certainty.[15]
Continuing, he held that a reasonable interpretation of the grant would be as follows:
1) The decree standing alone clearly defines the north boundary. Instead of granting to the Colorado River, that boundary was limited to the Arroyo Hondo, about twelve miles farther south.
2) The petition prayed for the mountains and town lands as an eastern boundary. According to the rules of construction, the land, had that boundary as asked for been granted, would have stopped short at the base of the mountains, and it appears that as a compensation for cutting off the north boundary, the eastern boundary was extended to the top of the mountain, some nine miles east of the base.
3) The western and southern boundaries can only be determined by looking to both the decree and petition, for the decree standing alone is ambiguous. The petitioners ask for the hollow of the Del Norte River as a western boundary. They also ask for the lands of Sebastian Martinez as a southern boundary. The decree does not specify the western boundary, unless it does so in the language “on that which looks towards the river of the north”. Looking to the petition for aid we find the prayer for the river as the western extreme. No other western boundary being limited, the irresistible conclusion is that the intention was to grant the land clear to the river. This leaves but the southern boundary to be considered, and that boundary is very clearly established by the decree, “Two leagues in breadth (latitude) shall be given to him.”[16]
The Commissioner recognized that no other construction would give certainty to the grant, He noted that if it was assumed that the Vigil house was a boundary call, then it would leave the location of the southern boundary completely to the discretion of the grantee, since the house had not been constructed at the time possession was delivered. Therefore, the Commissioner ordered a new survey of the grant. To prevent an irregular or crooked southern boundary, which would result from the southern boundary being located parallel to the river, he ordered the boundary drawn on a straight line in a manner as to give the grant owners the same amount of land that they would receive if it had been drawn parallel to the river.[17]
The next problem arose when it was learned that the Arroyo Hondo had three branches. The middle one ran in an easterly direction but was not the principal stream, The Surveyor General asked the Commissioner for further instructions localizing the northern boundary of the grant. In a long and detailed opinion dated May 3, 1900, Commissioner Binge Hermann, after reciting all of the survey problems concerning the grant, stated:
In conclusion, I have only to invite attention to a few of the more prominent elements in this case, lending to impeach the integrity of the grant, and as demonstrating the utter impossibility of identifying it either on the face of the earth’s surface or by virtue of any memoranda or document of other evidence extent …
The duty incumbent upon this office is to ascertain the area covered by the grant and to define it by a practical survey. After a most careful and painstaking examination and study of the entire subject, I find this too impracticable, I am confronted at the threshold with the records and plots of this office indicating that the larger portion of that tract which is claimed by the present claimants to have been included under the grant, has been confirmed to other parties by the courts, and under grants made long prior to 1743, the date of the grant under consideration …
The courts have held from time immemorial that in the description of premises conveyed there must be a sufficient, definite and certain reference as will enable the land to be identified; otherwise, said conveyance will be void for incertainty …
I am therefore forced to conclude that the area intended to be conveyed under the grant in question cannot be ascertained by reason of the uncertainty and vagueness in description, and as no survey of said grant pursuant to the Confirmatory Act of Congress has been found practicable after numerous attempts by surveying officials of the Department, and after long years of investigation by this office, there is but one alternative left, and that is to decide the survey and plotting of said grant impossible, and to declare the last survey made as disapproved and rejected. The decree of May 29, 1894 is therefore revoked[18]
The owners of the grant promptly appealed this decree to the Secretary of Interior, who on January 17, 1902 held the true boundaries of the grant were susceptible to certain locations and were:
On the north, the Arroyo Hondo; on the east, the summit of the main chain or range of the Rocky Mountains; on the south, a line extending from the summit of the main chain or range of the Rocky Mountains to the Del Norte River, established at a distance of two leagues, right angle measurement, from the Arroyo Hondo and parallel to the general course thereof, said line to be run between stations fixed at such points as will make its course conform to every material change in the course of the Arroyo Hondo; and on the west, the bed of the Del Norte River.
It was recognized that the grant, as thus defined, covered a portion of the Antonio Martinez Grant and a small fraction of the Pueblo of Taos Grant. The Antonio Martinez Grant had been confirmed and patented subsequent to the confirmation of the Antoine Leroux Grant but the Pueblo of Taos Grant was in all respects the senior grant. Therefore, Secretary of Interior E. A. Hitchcock rejected the Ratliff Survey and ordered a resurvey of the grant, which was to exclude all lands covered by the Pueblo of Taos Grant but was to disregard the conflict with the Antonio Martinez Grant. The surveyor was also instructed to follow the principal or northeasterly branch of the Arroyo Honda as long as it ran in an easterly direction. The northern boundary was to run due east from that point to the summit of the mountains.[19]
A contract was awarded on May 18, 1903 to Deputy Surveyor John H. Walker to resurvey the grant in accordance with Hitchcock’s decision. The survey was made during the months of June and July, 1905 and September, 1907, The final field notes were approved on August 25, 1909 and showed that the grant covered 56,428.31 acres. A patent was issued for such land on August 1, 1911.[20]
[1] H. R. Exec. Doc. No. 112, 37th Cong., 2d Sess., 24‑26 (1862).
[2] Parkhill, The Blazed Trail of Antoine Leroux 66‑68, 82 (1965).
[3] Ibid,, 216.
[4] The Antoine Leroux Grant, No, 47 (Mss., Records of the S.G. N.M.).
[5] H.R. Exec. Doc. No. 112, 37th Cong., 2d Sess., 28‑29 (1862).
[6] H. R. Report No. 71, 40th Cong, 2d Sess., 4‑5 (1868).
[7] Reynolds, Spanish and Mexican Land Laws 121 (1895).
[8] Ibid., 141.
[9] An Act to confirm Certain Private Land Claims in the Territory of New Mexico, Chap. 152, 15 Stat. 342 (1869)
[10] Ibid.
[11] The Antoine Leroux Grant, No. 47 (Mss., Records of the S.G.N.M.).
[12] Ibid.
[13] Ibid.
[14] Ibid
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] The Los Luceros Grant, 31 L.D. 202 (1900).
[19] The Los Luceros Grant, 37 L.D. 512 (1902).
[20] The Antoine Leroux Grant, No. 47 (Mss., Records of the S.G.N.M)
Antoine Leroux grant; J.J. Bowden's research on land grants