by J. J. Bowden
Antonio Urban Montano, a resident of Santa Fe, appeared before Governor Velez Cachupin and registered the lands which formally had belonged to the ancient Pueblo of San Marcos.[1] He described the tract as being bounded:
On the north by a small rocky mountain on the prairie; on the east by a high road leading to the Pueblo of Galisteo; on the south by the ridge which divides the pueblo from the Arroyo of Lo de Basquez; and on the west by side of the hills which are between the Sitio de los Serrillos and the Arroyo of Lo de Bosquez.
Montana stated that he had a large family and some stock but no land upon which to support them. He ended with a prayer that the premises be granted to him so he could build a home for his family and develop a ranch as a pasturage for his stock. After giving due consideration to the petition, Cachupin, on June 15, 1754, found that Montano’s reasons for requesting a grant were sufficient, that the lands were vacant, but that he had asked for more land than was reasonable under the circumstances. Therefore, he made a grant to Montano but limited it to a tract measuring 1,650 varas in each direction from the center where “he may build his house and corrals.” The grant was also made subject to the condition and understanding that Montano was to prevent his herds from damaging the commons “located at these places” upon which were pastured mounts and livestock of the soldiers stationed at the Presidio of Santa Fe. The grant also provided that if he should violate this condition, the grant would automatically terminate and he would be ejected from the premises. Cachupin concluded by directing the Alcalde of Santa Fe, Bartolome Fernandez, to place Montano in royal possession of the grant and return the expediente to him in order that a testimonio of the proceedings could be given the grantee as his title. In compliance with the governor’s order, Fernandez went to San Marcos on July 26, 1754, and placed him in possession of a tract of land which he described as being bounded:
On the north by some red rocks in the arroyo; on the east by two cedars; on the south by a large cottonwood near the road; and on the west, by a small mountain called the Chaichiquiti.[2]
The claim and grant papers were presented by the legal representatives of Antonio Urban Montano to Surveyor General James K. Proudfit on February 25, 1873, for examination and confirmation. The testimony of only one witness, Manuel Bustamante, was taken by Proudfit. He stated:
Many years ago when I desired to purchase this San Marcos spring property, I ascertained that a man residing at Abiquiu, named Juan Antonio Artega, had the papers in the grant, and understood that he was the owner of the property…. The reason I did not purchase the property … was that upon examining the tract I found that the supply of water afforded by the spring was small and inadequate.[3]
As a result of the investigation, Proudfit found that the original title papers appeared to be genuine and, therefore recommended its confirmation to the legal representatives of the original grantee according to the boundaries set forth in the Act of Possession.[4] A preliminary survey of the grant was made November, 1877, by Deputy Surveyors Griffin & McMullen for 1,890.62 acres.[5]
Since Congress had not acted on the claim, Surveyor General George W. Julian re‑examined it pursuant to the instructions he had received from Commissioner William A. J. Sparks dated December 11, 1885. In a Supplemental Report dated January 23, 1888, he advanced two objections against the recognition of the grant. First, he noted that petition had been filed by the legal representatives of the original grantee but neither the names nor the conveyances connecting them with Montano had been filed. He contended that unless the interested parties were named and their interests established by legal transfers, the government legally could not be called upon to hear and determine the claims of any party who failed to state who he was and the extent for which he asked the government’s intervention, Second, he noted that the petitioners had not shown that Montano had moved to and resided upon the grant as required by Spanish law or that the conditions specified in the grantings decree had been performed. He stated that it might he presumed that the law had been complied with and the conditions had been performed if the petitioners had held long peaceable possession of the premises but such was not the case. In connection with the boundaries of the grant, he asserted that the Griffin and McMullen Survey was erroneous in that they ran their lines east and west and north and south through the specified points in order to form a square tract, instead of connecting the four points, in order to form a diamond‑shaped tract. Thus, the grant had been erroneously enlarged to over an area twice the size originally granted by Cachupin.[6]
Julian’s re‑examination of this and other grants only added further confusion to the New Mexican land grant problem. Session after session passed without any Congressional action on the matter until finally, by Act approved March 3, 1891,[7] Congress created the Court of Private Land Claims to judicially settle what had become the leading obstacle to development of the territory. On July 25, 1892, Lehmann Spielegberg, who, in the meantime, by mesne conveyances had purchased the grant from Montano’s descendants, filed suit against the United States in that court seeking the confirmation of the grant.[8] After investigating the case, the United States attorney was unable to find any special defense and, therefore, declined to file an answer, but put the plaintiff to proof under the law. When the case came up for trial on December 12, 1892, Spielegberg introduced the grant papers, an abstract of title connecting himself with the original grantee, and oral testimony showing that there was a tradition that Montano and those claiming under him had possession of the grant since the date possession was delivered to him by Fernandez.
The court in an opinion dated December 16, 1892,[9] stated that it was satisfied that the grant papers were genuine and that the plaintiffs’ proof of occupation had been shown satisfactorily. Therefore, it confirmed the grant to Montano’s heirs and assigns in accordance with the boundaries set forth in the Act of Possession. The government did not appeal the decision. Deputy Surveyor Sherrard Coleman was awarded a contract on March 20, 1894, to survey the grant in accordance with Section 10 of the Act of March 3, 1891.[10] After spending several days upon the ground endeavoring to find the boundary calls cited in the decree, he came to the conclusion that it would be impossible to survey the grant since three of the natural objects specified in the decree could not be located. The government and claimants entered into a Stipulation on October 6, 1894, wherein it was agreed:
… that in the description of the boundaries of said grant as confirmed by said decree, both parties were mistaken as to the landmarks therein decreed as boundaries of said grant as appeared some of said landmarks being of a perishable nature have disappeared, it is agreed by said claimants that they accept the boundaries of said grant as confirmed, the measurement as given in the original grant, viz: 33 cordels of fifty varas in each direction, measured from the center when he built his house and corrals … and the United States as its part, by its attorney, agrees and consents that the survey may be made in accordance with the foregoing stipulation.[11]
The court modified the decree accordingly and the grant was surveyed by Coleman as a 1,895.44 acre square tract. The survey commenced at a stone monument of central point located near the ruins of an old corral. The center of each of the four boundary lines was located 33 cordels or 68.75 chains in each of the cardinal directions from this central point. A patent for the lands embraced within the survey was issued to the heirs, successors, assigns and legal representatives of Antonio Urban Montano on June 23, 1896.[12]
[1] San Marcos was a Tano pueblo. In 1680, it was a Spanish mission with about 600 inhabitants. Its residents joined the Pueblo Revolt and destroyed the church. The pueblo was abandoned and in ruins when Diego de Vargas reconquered New Mexico in 1692. 2 Hodge, Handbook of American Indians North of Mexico, 448 (1960).
[2] S. Misc. Doc. No. 12, 42nd Cong., 1st Sess., 89‑93 (1875).
[3] Ibid., 91.
[4] Ibid., 91‑92.
[5] The San Marcos Pueblo Grant, No. 102 (Records of the S.G.N.M.).
[6] Ibid.
[7] Court of Private Land Claims Act., Chap. 539, 26 Stat. 854 (1891).
[8] Spielegberg v. United States, No. 22 (Mss., Records of the Ct. Pvt. L. CL.)
[9] 1 Journal 88 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Court of Private Land Claims Act., Chap. 539, Sec. 10, 26 Stat. 854 (1891).
[11] Spielegberg v. United States, No. 22 (Mss., Records of the Ct. Pvt. L. Cl.).
[12] The San Marcos Pueblo Grant, No. 102 (Mss., Records of the S.G.N.M.).
San Marcos Pueblo Grant; J.J. Bowden's research on land grants