by J. J. Bowden
On February 22, 1840, Juan Salas, and eleven other landless citizens of the Town of Pena Blanca petitioned the Alcalde of the Pueblo of Cochiti, Diego Antonio Aragón, asking him to recommend to the prefect of that district that a grant be given to them for agricultural and colonization purposes covering a tract of land on the Galisteo River lying between the Penasco and the Laguna de los Alamitos. Four days later Aragon returned the petition to Salas with the recommendation that the petitioners submit their request directly to Prefect Antonio Santonio Sandoval instead of through his office. To expedite the matter, he stated in this letter that he personally knew of the poverty and hardships which they were forced to endure as a result of their not possessing any land. In response to the Alcalde’s instructions, Salas submitted the application to Sandoval only to be advised that the lands were not within his jurisdiction, and that they should apply to the proper authority. Therefore, on March 5, 1840, Salas, for himself and on behalf of his eleven associates, petitioned Governor Manuel Armijo for the requested grant. Upon receipt of the petition, Armijo referred it to the Ayuntamiento of Santa Fe for a report upon the status of the land. After conducting an extensive examination, the Ayuntamiento in its report dated March 14, 1840, found that the land was vacant and there were no obstacles to the making of the concession. However, it recommended that should the grant be made, it be done without prejudice to the pastures and. common watering places and also subject to a condition:
… requiring fences to protect their fields, and permitting them to have, considering their consumption of pasturage, one hundred or less sheep and goats, at the common watering places, requiring that they shall not drive away animals so that they may damage the people of the city and its vicinity, and also that each be restricted to what he can conveniently cultivate according to his means.[1]
By decree dated on the 23rd of the same month, Armijo held that inasmuch as the Ayuntamiento had presented no objections to the issuance of the requested grant, the Alcalde of Santa Fe, Felipe Sena, should “give the grantees all the land which they conveniently could work” provided the Ayuntamiento of Santa Fe consented to each of the allotments and thereby waived any complaints which that august body might have in connection with Sena’s actions. In obedience to this order, Sena went to Alamitos on May 18, 1840, and placed the grantees in possession of the property and allocated an individual lot of land to each of the grantees.[2]
While the evidence is somewhat conflicting, it appears that only two of the original grantees, Juan Salas and Mariano Lucero, actually moved to the grant. They lived on and cultivated the lands which had been allotted to them for about seven months and for several months thereafter pastured livestock on their lots. The grant apparently was not occupied or used after 1840.[3]
Salas presented the claim to Surveyor General James K Proudfit on October 19, 1872. After a cursory examination of the claim, Proudfit in an opinion dated December 18, 1872, held:
This grant seems to have been made with due care and legality, and the original papers are undoubtedly genuine. The amount of land is something over two hundred acres to each original grantee or about twenty-six hundred acres in all … I respectfully recommend, as the grant appears to have been made absolutely and without condition, except occupancy and use as required by law, it be confirmed by Congress to the twelve original grantees or their legal representatives … Whether any further or more continuous actual use and occupance then is established in this case would have been required under the Mexican law to make the title perfect and indisputable, is not clear to me; but if so, the rule laid down by the court in Hornsby vs. United States [77 U.S. (10 Wall) 224 (1879)] …. would seem to be conclusive in favor of the claimants in this case.[4]
A preliminary survey of the grant was made by Deputy Surveyor S. C. McElroy in November, 1877, for 436.41 acres.
Session after session passed and Congress never acted upon the claim. Therefore, after the Court of Private Land Claims was created, the owners of the grant turned to that forum for relief. Thomas B. Catron, who had purchased an interest in the grant, filed suit in that court on February 14, 1893, seeking the confirmation of the grant.[5] A second suit for the same purpose was filed on March 2, 1893, by Kate Sullivan who claimed an interest by inheritance.[6] The two suits were consolidated by order of the court by decree dated April 9, 1894, and proceeded to trial under cause No. 91.
When the case came up for trial on September 3, 1896, the claimants introduced the testimonio of the grant together with documentary evidence connecting themselves with the original grantees. The government argued that the grant was void since it had not been approved by the Departmental Assembly of New Mexico as required by Mexican Law.[7] In the alternative, it contended that if the grant was not void it was voidable, and, therefore, to the extent that it conflicted with the Mesita de Juana Lopez Grant, was an equitable claim which was cut off when Congress confirmed that Mesita de Juana Lopez Grant on January 28, 1879. In support of this contention the government presented testimony which indicated that all of the grant, except for a narrow strip about 35 chains wide, was located within the Mesita de Juana Lopez Grant. Oral evidence was also introduced by the government tending to show that the claimants’ predecessors had occupied the grant briefly in 1840, and probably had long since abandoned the premises.
The Court, on December 1, 1896, held that since the grant had not been approved by the Departmental Assembly it was an equitable or imperfect grant;[8] and that the confirmation of the Mesita de Juana Lopez Grant by Congress deprived the court, insofar as the portion of the grant in conflict was concerned, of the power to do anything more than to reject that portion of the grant. However, it held that the plaintiffs were entitled to a confirmation of the portion of the grant lying outside the exterior boundaries of the Mesita de Juana Lopez Grant.[9] Judge William W. Murray wrote a dissenting opinion in the case in which he stated that he believed that the entire grant should have been rejected on the ground the governor had no authority to issue a valid grant in New Mexico after 1828, without the approval of the assembly.
Although the grant, as confirmed, covered only 297.55 acres, the government’s attorney recommended the decision be appealed since the same question was involved in a number of other cases then before the Court of Private Land Claims and also because a decision by the Supreme Court rejecting the entire grant would discourage the claimants from bringing suit against the United States for the value of the portion of the grant within the Mesita de Juana Lopez Grant. The several decisions involving California grants which held that the failure of the Assembly to approve a grant would not prevent its confirmation prompted the government’s attorney to agree to a dismissal of the appeal in consideration of the claimant’s attorney agreeing not to seek compensation for the rejected portion of the grant. Pursuant, to this agreement, the Supreme Court dismissed the appeal on October 10, 1899.[10] Once the decision became final, a survey of the grant was made by Deputy Surveyor Levi S. Preston n 1901 and patented on November 27, 1914.[11]
[1] S. Exec. Doc. No. 37, 42d Cong., 3d Sess., 10-12 (1873).
[2] Ibid., 12.
[3] The Alamitos Grant No. 69 (Mss., Records of the S.G.N.M.).
[4] Ibid.
[5] Catron v. United States, No. 91 (Mss., Records of the Ct. Pvt. L. Cl.).
[6] Sullivan v United States, No. 183 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] Section 7 of the Regulations of November 21, 1828, provides that “grants made to private persons or families shall not be definitely valid without the previous consent of the Territorial Deputation, for which purpose the respective proceedings shall be forwarded to it,” Reynolds, Spanish and Mexican Land Laws, 142 (1895).
[8] While grants made subsequent to 1828 required the approval of the Departmental Assembly, it was the duty of the governor and not the grantee to submit the grant to the assembly for its approval and if he failed to do so it would not prevent its confirmation. Hornsby v. United States, 77 U.S. (10 Wall) 224 (1870); and United States v. Castillero, 64 U.S. (23 How.) 464 (1860).
[9] 3 Journal 150 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] United States v. Catron, 20 S. Ct. 1021; 44 L. ed. 1219 (mem.) (1899).
[11] The Alamitos Grant No. 69 (Mss., Records of the S.G.N.M.).
Alamitos Grant; J.J. Bowden’s research on land grants.