by J. J. Bowden
The heirs and legal representatives of Juan Luis Ortiz petitioned Surveyor General James K. Proudfit on September 2, 1872, seeking the confirmation of the Sierra Mosca Grant. The basis of the grant was a testimonio comprised of three instruments–a petition, decree, and Act of Possession. The petition showed that Ortiz a resident of the Pueblo of Pojoaque, petitioned Governor Manuel Armijo for a grant covering a tract of vacant land located near his residence. The tract was described as being bounded:
On the north, by a little flat mountain and some arroyos running between north and west; on the east, by a high mountain called the Mosca or Panchuelo slope; on the south, by a rocky mountain situated above the Chupadero valley or boundary of the citizens of the Tesuque River; and on the west, by a point one fourth of a league below the waterfalls in the Canada de los Ojitos.
While acknowledging that he had a small tract of land at Pojoaque, Ortiz pointed out that it was so restricted that it would no longer support his large family. He described the requested tract as containing arable lands for cultivation, pastures for stock raising and an adequate water supply. The decree, which consisted of a single paragraph, stated:
What is stated by the petitioner in Santa Fe, June 4, 1846, in the foregoing petition, asking that there be granted to him the public land which he describes in the same, being true, and this government being convinced of the good reasons he sets forth, the petitioner will apply to the proper justice, that he may place him in possession of the land solicited in entire conformity to the laws in the premises.
s/ Armijo
s/ Juan B. Vigil y Alavid,
Secretary
The Act of Possession recites that Ortiz appeared before Jose Dolores Trujillo, the Justice of the Peace of Pojoaque on June 8, 1846, and requested Trujillo to place him in possession of the grant. By virtue of Armijo’s Decree, Trujillo, his attending witnesses, Ygnacio Alvid and Miguel Gonzales, and Ortiz proceeded to the grant. After surveying the grant in accordance with the description set out in the petition, Trujillo delivered possession of the premises to Ortiz. The testimonio was written on unstamped paper but contained a recitation that there was none available at that time.[1]
During his investigation of the claim, Proudfit took the testimony of four witnesses who were favorable to the claimant. Antonio Sena testified that he was present when Armijo made the grant and that the signatures of Armijo arid Vigil were both genuine. He also stated that as Prefect he had appointed Trujillo Justice of the Peace for the precinct or demarcation of Pojoaque. Ramon Sena y Rivera stated that he had accompanied Ortiz when he presented the petition to Armijo and saw the governor sign the decree with Vigil. He also testified that he was with Ortiz when Trujillo placed him in possession of the grant. Joab Houghton a former Justice of the Territorial Supreme Court, testified that he was intimately acquainted with Armijo and Vigil and that he recognized:
… Armijo’s signature as being genuine on this document, as I do that of Juan B. Vigil, though signed somewhat differently from his usual way.
Houghton explained the variation in Armijo’s signature from his usual form might have been caused as a result of his using a steel pen, which had only recently been introduced into New Mexico and signing the decree at a time when he was highly excited and nervous due to the approach of American troops under General Stephen Kearny. Pablo Dominguez testified that “the tract has been occupied by Juan Luis Ortiz and his heirs at all times and has always been reported to belong to them.”[2]
In an opinion dated October 8, 1873, Proudfit stated:
I doubted, at first, the genuineness of the papers as showing the grant and possession to have been given as set forth; but the testimony brought before me, has set my mind at rest on that point, and I am now entirely satisfied of the good faith of the claimants, the regularity of the original proceedings, and the legality of the grant. At any rate, I have given it the best investigation in my power before announcing this opinion, and can arrive at no other conclusion. I, therefore, recommend that the grant be confirmed by Congress according to the boundaries above set forth, to the legal representatives of Juan Luis Ortiz, deceased.[3]
A preliminary survey of the grant was made in September, 1879, by Deputy Surveyors Sawyer & McBroom for 33,250.39 acres. The claimants protested the survey on the ground that it was not made in accordance with the boundaries set out in the Act of Possession, which they estimated covered about 155,200 acres.[4]
Meanwhile, the claim for a second Sierra Mosca Grant based on a separate chain of title but covering substantially the same area was presented to Surveyor General James K. Proudfit.[5] The petition seeking the confirmation of this claim was filed on December 27, 1873, by Jose Manuel Ortiz and three other persons, each claiming to own an interest by inheritance, under a grant which had been made to Vicente Duran de Armijo and afterwards confirmed to Gaspar Ortiz. The claimants asserted that Duran had petitioned Governor Gaspar Domingo de Mendoza for a grant covering a twelve square mile tract of land which was bounded:
On the north, by the Arroyo Seco; on he east, by the mountains; on the south, by the lands of Bernardino de Sena; and on the west, by the Pueblo of Nambe Grant.
In response to this petition, Mendoza on September 25, 1739, decided that Duran should be given a grant in the vicinity of the tract which he originally had requested and ordered Juan Garcia de Mora, Alcalde of Santa Cruz, to locate the grant in a manner which would not prejudice the rights of the Nambe Indians. When Mora arrived at the pueblo of Nambe, he found that Duran and the Indians had mutually agreed that Duran’s grant should cover two small tracts located in the northwest corner of the Pueblo of Nambe Grant. Whereupon, Mora delivered royal possession of such tracts to Duran.[6] About three years later, Duran and the Indians of Nambe entered into an agreement whereby Duran gave the Indians the two small tracts which he had been granted and they in turn withdrew their protest against his being given the tract which he had originally requested. Duran sold the Sierra Mosca Grant to Gaspar Ortiz in 1798. Being somewhat concerned over the validity of his title, Gaspar Ortiz petitioned Governor Joaquin del Real Alencaster for the confirmation of the grant. On October 20, 1806, Governor Alencaster confirmed the grant and ordered the Alcalde of Santa Cruz, Manuel Garcia de la Mora, to fix its boundaries and to deliver possession to Gaspar Ortiz. Nine days later, Mora, in compliance with the governor’s decree, placed Ortiz in royal possession of the premises and designated the following natural objects as its boundaries:
On the north, a day run to the Sierra Mosca; on the east, by the mountains; on the south, by the lands of Bernardino de Serna; and on the west, by the lands of the pueblo of Nambe.
Surveyor General Proudfit examined a number of witnesses in connection with the investigation of the claim. These witnesses testified that Ortiz had held and occupied the grant up until the date of his death in about 1822, and his heirs, who exceed fifty in number, inherited the promises and were then in possession of the grant. Several witnesses stated that in 1842, some parties had petitioned Governor Juan Ramirez Archuleta for a grant covering a tract of land in the Chupadera Valley but their petition had been denied when it was found to conflict with the Sierra Mosca Grant. Ortiz’s grandson, Jesus Maria Ortiz y Baca, testified that the testimonio concerning the confirmation grant was found amongst his grandfather’s papers. The petitioners stated that when the heirs of Gaspar Ortiz petitioned for the confirmation of the Gaspar Ortiz Grant No. 31, they had inadvertently failed to file the confirmation grant but had described the lands covered thereby in their petition. And, since neither the Act of June 21. 1860,[7] nor the Surveyor General’s Report had set forth the boundaries of the tract which had been confirmed, the confirmation was invalid due to the lack of a legal description. If the confirmation was invalid, then according to the petitioners’ line of reasoning, further congressional action certainly would be appropriate. Proudfit issued a very short opinion on April 22, 1874, in which he stated that he was satisfied that the grant was valid and recommended its confirmation to the heirs of Gaspar Ortiz in accordance with the boundaries set forth in the Act of Possession of October 29, 1806.[8]
On December 27, 1876, the heirs of Gaspar Ortiz wrote Surveyor General Henry M. Atkinson protesting the confirmation of Juan Luis Ortiz’s claim on the ground that it was a fraud. They contended that all of the descendants of Gaspar Ortiz, including the heirs of Juan Luis Ortiz, who was one of Gaspar Ortiz’s sons, had an interest in the lands covered by the Sierra Mosca Grant of 1806. As a result of the protests Surveyor General Atkinson conducted an intensive reinvestigation of the conflicting claims, which was not completed for nearly ten years. On January 22, 1886, Surveyor General George W. Julian issued an unfavorable Supplemental Opinion in connection with the claim by the heirs of Gaspar Ortiz. After carefully comparing Alencaster’s signature on other documents in the Archives he found that it bore little, if any resemblance to the others. Continuing, he stated:
The petition to the governor, the purported decree of that officer, and the certificate of the alcalde as to delivery of possession, as well as the name of that officer and his attending witnesses, all appear to be in the same handwriting. The awkward and bungling manner in which the pretended decree of the governor is written condemns the paper.[9]
If the confirmation decree was a forgery, then it was obvious that the heirs of Gaspar Ortiz had no valid claim to the Sierra Mosca Grant.
Julian issued a Supplemental Report in connection with the claim of the heirs of Juan Luis Ortiz on March 27, 1886. In this report, he stated that a careful examination of the testimonio of the 1846 grant and evidence upon the subject led him to believe that it also was a forgery. He pointed out that the name of Governor Armijo upon the testimonio was unlike any of his signatures on the many records and papers in the public archives. He noted that the signature appeared to have been written with a fine‑pointed pen, and although Judge Houghton had testified that steel pens were in use in New Mexico prior to 1846, he did not affirmatively state that the Mexican officials had used them. But, on the contrary, each contemporary document in the public archives indicated that steel pens had not been used by the Mexican officials prior to the occupation of New Mexico by the American troops Julian stated that since there were only a few documents in the Archives containing Juan B. Vigil y Alavid’s signature, he was unable to determine if it was genuine. However, he noted that none of the numerous grant papers which had been executed by Armijo in the years 1843, 1844, 1845, and 1846, all of which were regarded as genuine, bore the signature of Vigil, who was Secretary of the Territory of New Mexico when Armijo was governor. This circumstance seemed rather irregular to Julian. His opinion relied heavily upon the testimony of Donaciano Vigil, who was military secretary of New Mexico from 1836 to 1845 and well acquainted with Armijo and his signature. He stated that, in his opinion, Armijo had not signed the testimonio. A number of other witnesses testified that Jose Dolores Trujillo did not, in 1846, or at any other time, occupy the position of Alcalde or Justice of the Peace of Pojoaque. Their testimony also showed that Antonio Sena, Ramon Sena Rivera, and Gaspar Ortiz were brothers‑in-law. It was also shown by a document from the archives that on May 7, 1846, less than a month before the grant allegedly was made, there was stamped paper in New Mexico, As a final argument against the confirmation of the claim, Julian asserted that even if the grant papers were genuine the claim could not be confirmed. As authority for this contention, he cited the Supreme Court’s decision in the Peralta Case,[10] which held:
Written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not suffice if it is obtained from private hands, and there is nothing in the public records of the country to show that such evidence ever existed.
Thus, it is not surprising that Julian concluded the Supplemental Report with a recommendation to Congress that the claim be rejected.[11]
Although Julian and the Secretary of Interior had strongly urged Congress to pass a bill rejecting both claims, they were still pending in 1891 when the Court of Private Land Claims was created. Juan Miguel Ortiz and his associates had abandoned their claim, but the heirs of Juan Luis Ortiz filed suit[12] in the Court of Private Land Claims on February 14, 1893 for the confirmation of the heirs.
The case came up for trial on August 19,1896, at which time the plaintiffs tendered their title papers and the written testimony of the four witnesses who appeared before Proudfit all of whom were then deceased. They also offered oral evidence tending to connect themselves with the original grantee and showing that their ancestors had occupied the land for a long period of time. The government in turn offered oral testimony showing that prior to the presentment of the claim to the Surveyor General in 1872, it had never been heard of by the people living on the premises and about that time Juan Luis Ortiz had attempted to purchase an interest in a prior grant covering the same tract. The theory of the government was that the grant papers were apparently fabricated about that date. The testimony taken in the Surveyor Generals office in connection with the re‑examination of the claim was presented to show that Trujillo was never an Alcalde. Oral testimony from a number of aged men was also adduced for the same purpose. The archives of office of Alcalde of San Ildefonso were brought into court to show that in 1846 Pojoaque was under its jurisdiction, that at that time Pojoaque did not have a separate Alcalde, and that the Alcalde for San Ildefonso was another person. In addition to the testimony of Donaciano Vigil before the Surveyor General’s Office, Will M. Tipton, an expert witness on handwriting and the Spanish archives of New Mexico, testified that after a careful examination of the grant papers he was of the opinion that Armijo’s signature was not genuine.
On December 1, 1896, the court found Armijo’s signature on the grant papers to be genuine notwithstanding the fact it was unlike a number of others in the archives. The court stated that a number of reputable persons had testified that the signature was valid and accounted for the dissimilarity by pointing out that at the time the grant was executed, Armijo was very excited and used a pen with which he was unfamiliar. As for the Trujillo controversy, the Court noted that Antonio Sena, who had the authority to appoint alcaldes, had testified that he had appointed Trujillo to that office. The court also pointed out that the government’s evidence was primarily rebuttal testimony by expert witnesses. The decision concluded with a holding that the weight of the evidence was on the side of the plaintiff. Therefore, it confirmed the grant as an imperfect claim to the extent of eleven square leagues or 47,740 acres.[13] The government appealed the decision to the United States on two points. First, did the proof establish that a grant had been made and legal possession delivered by an official charged with that duty. Second, if it was found that a grant actually had been made, did the governor have authority to make a valid grant in 1846.
At the outset of its opinion, which was dated February 26, 1900, the Supreme Court pointed out that the plaintiff had the burden of proving by a preponderance of the evidence that their title was entitled to confirmation. After reviewing the evidence, the court found that there were many:
… facts and circumstances in the record casting the gravest doubt on the genuineness of the alleged grant and tending to contradict the testimony of the Senas. To avoid too much prolixity, however, we shall not refer to them. All the foregoing render it unnecessary to examine the …
other question raised by the appeal. Therefore, the court held that the Court of Private Land Claims erred in confirming the grant and reversed and remanded the case to the court with instructions to enter a decree rejecting the claim.[14] Pursuant to the Supreme Court’s mandate the Court of Private Land Claims entered a decree[15] rejecting the grant and dismissing the plaintiff’s petition on April 24, 1900. Thus, ended the history of one of New Mexico’s most controversial private land claims.
[1] S. Exec. Doc. No. 3, 43d Cong., 1st Sess1 69 (1873).
[2] Ibid., 10‑12.
[3] The Sierra Mosca Grant, No. 75 (Mss., Records of the S.G.N.M.).
[4] Ibid.
[5] The Gaspar Ortiz Grant, No. 87 (Mss., Records of the S.G.N.M.).
[6] The Gaspar Ortiz Grant, No. 31 (Mss., Records of the S.G.N.M.).
[7] An Act to confirm certain Private Land Claims in the territory of New Mexico, Chap. 167, Sec. 3, 12 Stat .71 (1860).
[8] H. R. Exec. Doc. No. 258, 43d Cong., 1st Sess. 1‑12 (1874).
[9] S. Exec. Doc. No. 37, 49th Cong., 2d Sess., 3‑5 (1887).
[10] Peralta v United States, 70 U,S. (3 Wall.) 434 (1866).
[11] S. Exec. Doc. No. 14, 50th Cong., 1st Sess. 23-26 (1887).
[12] Ortiz v. United States, No. 87 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] 3 Journal 209 (Mss., Records of the Ct. Pvt. L. Cl.).
[14] United States v Ortiz, 176 U.S. 422 (1900).
[15] 4 Journal 130 (Mss., Records of the Ct. Pvt. L. Cl.).
Sierra Mosca Grant; J.J. Bowden's research on land grants