by J. J. Bowden
Ensign Alonzo Rael de Aguilar, one of the reconquerors of New Mexico and its Secretary of State and War during the reconquest appeared before Governor Diego de Vargas at Santa Fe on September 18, 1692, requesting a grant covering a tract of land at the place called Los Serrillos. He called the governor’s attention to his faithful military service, reminded him that he was a poor man with a wife and children, and stated that since the war was over, he wished to turn his attention towards the support and comfort of his loved ones. Vargas immediately granted the requested tract together with its “pastures, water, timber, watering places, uses and customs and the appurtenances” in consideration of Aguilar’s “merit and services.” Following the completion of the recolonization of New Mexico in 1693, Aguilar built his home on and moved to the grant. He continuously occupied and used the premises until 1696, when he was recalled to the army as a result of a new revolt by some of the northern Pueblo Indians. Due to the unsettled times, Aguilar could not leave his family unprotected upon the grant while he was away on military service. Therefore, the grant was abandoned and the hacienda and out buildings fell into a state of disrepair and soon became ruins.
On or about April 25, 1750, Aguilar’s heirs petitioned Governor Tomas Velez Cachupin for the reconfirmation of the grant, which at that time was unoccupied and used only as pasturage for the mounts used by the soldiers at the Presidio of Santa Fe. The petitioners assured the governor that:
. . . the horses are welcome to the pasturage as long as may be required, without any of us making objections, unless pasturing in the cultivated ground, as there is enough for all …
Cachupin, on April 25, 1750, requested the, petitioners to present their title papers for his examination. Two days later, they submitted a copy of Aguilar’s petition and the granting decree dated September 18, 1692. The copy was certified by Lieutenant Governor Juan Paez Hurtado as being a true and correct copy of the original, which was “very badly used.” On the same day, Cachupin denied the request and held the grant to be void since the petitioners’ muniments of title did not show that possession of the grant had ever been formally delivered or that the grantee had complied with the conditions of settlement. He also pointed out that Hurtado’s certificate did not show that he had the authority to furnish a testimonio of the grant purporting to be the original. Continuing, he noted that his predecessors had consistently refused to allow the lands covered by the grant to be settled or occupied as they served as a pasture for the garrison’s large horse herd. This use was especially important since it was:
. . . the place nearest the garrison in the getting up, at shortest notice, of any necessary expedition in the royal service for the defense of this country.
He closed ordering the Alcalde of Santa Fe to notify the petitioners of his decision, secure the testimonio of the grant and return it to the governor. Pursuant to this decree Alcalde Jose de Bustamante Tagle summoned the petitioners and read them the decree. They advised Tagle that while their father at one time had the original grant papers they had been lost.
Aguilar’s descendants made no further claim to the land until 1788, when Joseph Miguel de la Pena, who had married one of Aguilar’s granddaughters, registered the tract for grazing and agricultural purposes. Governor Facundo de la Concha, after personally inspecting the premises and “finding it convenient,” granted the tract to Pena and Aguilar’s other heirs on June 12, 1788. He also delivered the royal possession of the grant to Pena. Notwithstanding the fact that Concha had delivered possession of the grant to him, Pena doubted his authority to perform the ceremony. Therefore, he presented the granting decree to the Alcalde of Santa Fe, Antonio Jose Ortiz, and requested him to redeliver royal possession of the premises to him. In response thereto, Ortiz went to Los Serrillos on June 12, 1788, and performed the customary ceremony necessary to place Pena in possession. Ortiz also designated the boundaries of the grant as being:
On the north, the limits of the Canada del Guicu and the Baca land; on the east, by the road to Galisteo, on the south, by the Serros Altos; and said grant consists by its measurement from east to west of 2,500 varas.
Ortiz then proceeded to partition the grant into three equal parts. Pena received the west third, Antonio Teresa Rael de Aguilar the middle third, and Antonio Anaya the east third. Pena subsequently conveyed his tract to Cleto Meira, who owned the lands to the west. Meira, in turn, sold all of this property to Manuel Delgado on December 4, 1804. By mesne conveyance Delgado acquired other out‑standing interests under the grant.1]
The heirs of Manuel Delgado petitioned Surveyor General T. Rush Spencer on April 8, 1871, seeking the confirmation of the grant. John Gwynn and Robert B. Willison protested its confirmation insofar as it covered the 360 acres which they had purchased from the United States at a public sale. The case was set for hearing on September 23, 1871, at which time the interested parties offered documentary evidence and testimony in support of their positions. Based on this evidence and testimony, Spencer formed his opinion in the matter. By decision dated January 31, 1872, he held:
It does not appear from the action of 1750 in the case that there had been or was then established any government reserve; and the action of the governor in 1788 is believed and held to be sufficient of itself to constitute a good and valid claim, to the land referred to, even without regard to the validity or subsistence of the concession of 1692, and notwithstanding the refusal of 1750 …. It is, therefore, considered and held by this office that the concession made in 1788 to Jose Miguel de la Pena and the other heirs of Alonzo Rael de la Aguilar is a good and valid claim against the public domain of the United States, and the same is hereby approved to them and their legal representatives, and recommended to Congress for confirmation.2]
The grant was surveyed in November, 1877, by Deputy Surveyors Griffin and McMullen for 2,287.41 acres.3]
Notwithstanding this favorable report, the claim was still awaiting the pleasure of Congress then the Court of Private Land Claims was created and given jurisdiction over the adjudication of the validity of private land claims in New Mexico. A suit seeking the recognition of the grant was instituted[4] by Beatriz Perea de Armijo, as a legal representative of Jose Miguel de la Pena, in that court on February 11, 1892. The government filed a general answer putting in issue the allegations contained in the plaintiff’s petition. Gwynn and Willison also answered setting up their claims to be portions of the grant which they had acquired under the public land laws.
When the case came up for trial, the plaintiff introduced their muniments of title and oral testimony tending to show that the premises had been occupied by virtue of the grant for nearly one hundred years. Defendants Gwynn and Willison, in turn, offered their patents into evidence. Since the government raised no special defense, the Court by decision dated September 29, 1894, held as a matter of law that the plaintiff was entitled to the confirmation of the claim set forth in her petition. Therefore, it confirmed the grant to the heirs of Alonzo Real de Aguilar save and except for those portions which had previously been disposed of by the United States.5]
The grant was surveyed by Deputy Surveyor Walter G. Marmon under contract dated !ay 23, 1896. His survey showed that the grant covered 1,478.81 acres, and a patent based thereon was issued on December 17, 1897.6]
[1] H.R. Misc. Doc. No. 181, 42d Cong., 2d Sess., 101-104 (1872).
[2] The Los Serrillos Grant No. 59 (Mss., Records of the S.G.N.M.).
[3] Ibid.
[4] Perea v. United States, No. 78 (Mss., Records of the Ct. Pvt. L, Cl.).
[5] 2 Journal 236 (Mss., Records of the Ct. Pvt. L. Cl.).
[6] The Los Serrillos Grant No. 59 (Mss., Records of the S.G.N.M.).
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