by J. J. Bowden
Jose de Jesus Garcia and Rafael Alejo discovered a rich vein of gold in the Oso Mountains, but did not have the capital to develop it. Therefore, they sold their rights on September 18, 1833, to Lieutenant Francisco Ortiz, the military commander at the Real de Dolores, and Ignacio Cano for one hundred pesos. Ortiz and Cano appeared before the Alcalde of Santa Fe, Francisco Baca y Ortiz, on November 15, 1833, and registered the claim which they had named Santa Rosalia. On November 29, 1833, Baca directed Ortiz and Cano to open an exploratory shaft one and a half varas wide and at least ten varas deep in accordance with Section 4 of Chapter 6 of the Mining Ordinance of 1783.[1] He also advised them that if their work confirmed their claim that a valuable gold discovery had been made, then he was to be so advised and possession of the mine could be given to them pursuant to Sections 2 and 3 of Chapter 8 of the ordinance. Ortiz and Cano advised Baca on December 16, 1833, that they had completed the exploratory work and requested him to inspect the mine and place them in royal possession thereof in accordance with terms of the Mining Ordinance. Two days later, Baca, pursuant to Section 4 of Chapter 6 of the Mining Ordinance, appointed Manuel Delgado and Dolores Jalomo as assistants since there was no Notary Public in New Mexico, Damaso Lopez as Mining Expert, and Marceleno Abreu and Nestor Armijo as his assistant witnesses. Baca, together with his assistants, witnesses, the Mining Expert, and interested parties all proceeded to the mine. Upon examining the exploratory work, Lopez found:
… that the shaft of said mind was ten varas in depth, a vara and a half in width or diameter at the orifice, one and seven‑eighths varas in the declivity or slope, and ten varas in length…
Since the exploratory work was satisfactory, Baca pursuant to Section 1 of Chapter 6 of the ordinance granted and placed Ortiz and Cano in possession of a tract of land surrounding the mine consisting of three contiguous dependencies.[2] This tract was described as follows:
On the north, from the orifice of the mine, eighty varas, sufficient to form a boundary fronting the south, from the mine of Santo Nino, which Dolores Jalomo & Company are working; and in the southern direction five hundred and twenty varas; on the east on the slope of the creek, fifteen varas and to the west, eighty seven varas.
At the conclusion of these ceremonies, Ortiz and Cano asked Baca for sufficient water and land to support themselves and their animals while they were conducting their mining operations. In support of their request, Ortiz and Cano called Baca’s attention to Section 3 of Chapter 13 of the Ordinance which provided that the grazing and watering places necessary for the operation of a mine could be sold to the mine owner at a price to be established by a three‑man arbitration committee, if the land in question lawfully could be granted. After fully considering the merits of the request, Baca granted Ortiz and Cano the waters from the Ojo de Oso and the other springs to the east of the mine. He also granted an placed them in possession of a tract of common pasturing land measuring two leagues in each of the four cardinal directions from the mouth of the mine.[3]
Ortiz and Cano worked the mine for a short time after they received the grant, but Cano soon became dissatisfied and sold his interest to Ortiz.[4] Ortiz’s widow, Marguerita Montoya, acquired the grant under their mutual will following his death in 1848.[5] The New Mexico Mining Company, a New Mexico corporation, by mesne conveyances acquired the grant in 1858, and promptly re‑opened the mine.
The Company petitioned Surveyor General A. P. Wilbar on November 8, 1860, asking that its title be examined and approved, and forwarded to Congress for final confirmation[6] Wilbar’s attention was directed to the grant’s testimonio which had been filed in his office on March 24, 1856. Wilbar held a hearing on the claim on November 9, 1860, at which three witnesses presented testimony concerning the validity of the testimonio and conveyances. Baca was one of these witnesses. He testified that the proceedings held in connection with the grant had been taken with the knowledge and approbation of Governor Manuel Armijo and by his order. On November 24, 1860, Wilbar announced his decision in which he found:
Francisco Baca y Ortiz was first Alcalde, and therefore had the power to make the grant … Registry is the basis of a title to a mine … This Office considers this to be a complete title, and falls under the Treaty of Guadalupe Hidalgo of 2d February, 1848 – complete because granted by the proper officer, as stated above, and in strict compliance to the Mining Ordinances and law on the subject… This office is of the opinion that the present claimant has a full and complete title, and therefore approves this grant and recommends its final confirmation to the Congress of the United States.[7]
As a result of Wilbbar’s favorable opinion, Congress confirmed the grant by an Act approved on March 1, 1861.[8] This Act was interpreted by Wilbar’s successor Surveyor General John A. Clark as a confirmation of the claimant’s title to both the grant and the mine as described in Wilbar’s report. Therefore, he so ordered Deputy Surveyor Thomas Means to survey the premises. Means surveyed the grant in August, 1861, and his work depicted the grant as a four league square tract containing 69,458.33 acres of land. Clark approved the survey on September 10, 1861, and forwarded it to the Commissioner of the General Land Office for final approval. By decision dated June 19, 1875, Commissioner S. S. Burdett rejected the survey. Burdett stated that after a careful examination of the record with the Spanish and Mexican law governing the disposal of mines and land, he was convinced that the grant insofar as it covered the mine and surrounding land was invalid and the only title which the claimants had was by virtue of the act, which merely quitclaimed the land to the mining company. In support of this position, he cited the United States Supreme Court’s decision in the Caterillo case,[9] which involved the title to the famous New Almadan quicksilver mine and land grant.[10] The court found that after 1824, land could be granted for agricultural purposes only by the Governor with the concurrence of the Departmental Assembly, and mines could he granted only by a Mining Deputation. Therefore, an Alcalde had no authority to grant either lands or minerals. Burdett then turned his attention to the problem of determining the extent of the lands which had been relinquished to the mining company. First he noted that Wilbar’s opinion described the grant covering all the lands “within” two leagues of the mine and that grant papers described the grant as extending two leagues from each of the cardinal points, Under Wilbar’s description the grant would have to be a circular tract with a two league radius. Since there was no precedent for such an interpretation, he did not believe that it could be correct. Continuing, he stated that if the grant was not circular, it would appear that the grant was void due to the uncertainty in its description, for instead of having four sides, it merely had four lines radiating out from the mine shaft. However, if instead of lines, the calls were for points located two leagues from the mine in each of the cardinal directions, these points could be connected by straight lines. Thus, a diamond shaped tract would be formed containing half the area covered by the Means Survey.
The mining company promptly appealed this decision. On April 27, 1876, Secretary of Interior Zachariah Chandler reversed Burdett’s decision and ordered the issuance of a patent to the New Mexico Mining Company for all the lands embraced within the Means Survey except for 259 acres covered in the Canon del Agua Grant. The grant was patented pursuant to the decision, on May 20, 1876.[11]
[1] Rockwell, Spanish and Mexican Law 50 (1851).
[2] A dependency is a 200 vara square tract measured along the vein. In cases where the vein was inclined, the surface measurements were lengthened in proportion to the inclination. Ibid., 58.
[3] H.R. Exec. Doc. No. 28, 36th Cong. 2d Sass., 55‑58 (1861).
[4] A number of witnesses later testified that they had seen the conveyance which had been lost or destroyed sometime prior to the filing of the claim. Cano’s heirs filed a suit in the First Judicial District Court of New Mexico in 1865 in an effort to establish an equitable title to an undivided one‑half interest in the grant on the ground Cano had not conveyed his interest to Ortiz. This action was dismissed in 1868 for want of prosecution. A similar suit was filed by the complainant in 1883. The defendants’ answer contended that the claim was barred by either the Doctrine of Res Adjudicata or limitations. The Supreme Court in its decision sustained both of the defendants’ defenses. Farish v. New Mexico Mining Company, 5 N.M. 279; 21 p. 654 (1889).
[5] Charles H. Gildersleeve, as assignee of a number of collateral heirs, filed suit in the First Judicial District Court of New Mexico in January, 1883, in order to secure the recognition of his claim to an undivided one‑fourth interest in the grant. His claim was based on a theory that the “mutual will” was invalid since it was executed before an alcalde and two witnesses instead of seven witnesses as required by Mexican law. The District Court held in favor of the defendant and the plaintiff appealed. The Supreme Court of New Mexico found that under Mexican Law there were two types of wills. First, or “Closed Wills” were reduced to writing and sealed by the testator who then appeared before a notary and seven witnesses and declared it to be his will and their signatures affixed to the cover of the document. The second was “Open Wills” made before a Notary and three witnesses when there was no notary. In that case five witnesses were necessary but if that number could not be obtained, three would suffice. The Supreme Court held that this was an Open Will. It could be presumed that only three witnesses could be obtained, and therefore, the will was valid. Gildersleeve v. New Mexico Mining Company, 6 N. M. 27; 27 P. 318 (1891). The United States Supreme Court affirmed this decision on March 16, 1896, Gildersleeve v. New Mexico Mining Company, 161 U.S. 573 (1896).
[6] The Ortiz Mine Grant No. 43 (Mss., Records of the S.G.N.M.).
[7] H.R. Exec. Doc. No. 28, 36th Cong. 2d Sess., 71‑72 (1861).
[8] An Act to confirm certain Private Land Claims in the Territory of New Mexico, Chap. 66, 12 Stat. 887 (1861).
[9] United States v. Casterillo, 67 U.S. (2 Black) 17 (1863).
[10] Johnson, The New Almadan Quicksilver Mine, 72 (1963).
[11] The Ortiz Mine Grant No. 43 .(Mss., Records of S.G.N.M.).
Ortiz Mine Grant; J.J Bowden's research on land grants