by J. J. Bowden
The Village of Refugio de los Amoles,[1] like Mesilla and Santo Tomas, was established in 1850 by fifty families of Mexican citizens, who elected to be repatriated after their native lands were ceded to the United States under the Treaty of Guadalupe Hidalgo. Shortly after the formation of the settlement of Refugio de los Amoles, the inhabitants petitioned the Governor of the State of Chihuahua for a land grant. On June 4, 1851, Commissioner of Emigration, Ramon Ortiz, was directed to grant the colonists the lands upon which they had settled. Arriving at the new settlement on February 2, 1852, Ortiz found that the colonists were primarily immigrants from New Mexico and that they had already appropriated and improved a tract of rich agricultural land embracing an area of 6,900 varas from north to south and 2,475 varas from east to west. Ortiz granted the tract to the colonists and allotted each of its eighty‑three claimants a suerte [2]of land. The agricultural tract was described as being bounded:
On the north, by the lands of Jose de la Luz Jaquez; on the east by the Rio Grande; on the south, by the lands of Jose Maria Garcia; and on the west, by the slopes of the foothills. The eighty‑three suertes embraced all of the land within the agricultural tract except the townsite. After the agricultural tract had been surveyed and the suertes allotted, Ortiz proceeded to subdivide the townsite and award each of the colonists a residential lot at Refugio de los Amoles.
Lots were also set aside for a plaza and public buildings. Ortiz also set aside one and one‑fourth leagues of land north of the suertes as a common pasture. This tract measured 6,250 varas north and south by 3,125 varas east and west. The bosques and woods along the river were also set aside for the common benefit of all the inhabitants of the colony. The lands were granted to the inhabitants of the Refugio Civil Colony by Commissioner Ortiz in accordance with the general organic law of August 19, 1848,[3] and the Regulations of May 22, 1851.[4] Only a few of the colonists could afford to pay the six pesos fee required by the Commissioner in order to receive title documents for this individual allotments of land within the grant. The original Refugio Civil Colony Grant papers were duly filed in the Archives of the Ayuntamiento of El Paso del Norte by Ortiz.[5]
In 1865 or 1866, a group of 200 men, together with their families, moved from the village of La Mesa, New Mexico, and settled on the colony’s common pasture tract. These new settlers formed the town now known as “Old” Chamberino. About this same time another group of new settlers, together with some flood refugees from Refugio de los Amoles, occupied the lands lying between the grant’s southern boundary and the north line of the Santa Teresa Grant. These settlers formed the village of La Union. The inhabitants of La Union undoubtedly believed that their settlement together with their adjoining farms, comprised a part of the Refugio Civil Colony Grant. They apparently interpreted the language in the original grant, which fixed the grant’s southern boundary at the lands belonging to Jose Marie Garcia, to mean the Santa Teresa Grant, which were then owned by Garcia, instead of the lands allotted to him by Ortiz.[6]
Frequent boundary disputes arose in the colony since few of the original grantees and none of the subsequent settlers had title papers to the lands which they claimed and occupied. In an effort to resolve these disputes, the interested parties called a special meeting at La Union on November 16, 1870. At this meeting, Jose Maria Garcia was appointed to the position of special commissioner with authority to issue deeds to the inhabitants for the lands which they occupied[7] within the grant. Thereafter, Garcia recalled all of the title papers which had been delivered by Ortiz and once he had them all collected, he issued new deeds to the then inhabitants for their respective premises.
When the claimants of the Refugio Civil Colony Grant learned of the efforts of the inhabitants of the Dona Ana Bend Colony and the Mesilla Civil Colony to secure the confirmation of their grants, they also retained Jno. P. Bail to represent them. On February 2, 1874, Bail, as attorney for the claimants of the Refugio Civil Colony Grant, petitioned James K. Proudfit, Surveyor General of New Mexico, requesting him to investigate the validity of the grant. In his petition to Proudfit, Bail stated that the boundaries of the grant were correctly set out in an affidavit by Clemente Nanez who was one of the founders of the Town of Chamberino. Nanez asserted that the grant was bounded on the north by a monument, on the east by the river, on the south by the Alto de los Cuarones, and on the west by a line running one mile west of the top of the foothills.
By decision dated May 18, 1874, Proudfit held that the Refugio Civil Colony Grant had been lawfully made in 1852 by the proper authorities of the Mexican Republic, that the colonists had held peaceful possession of such lands since the date of issuance of the grant, and that he believed the petitioners had a legal and equitable claim to the land. He concluded his decision by recommending that the grant, as described in the record, be confirmed by Congress to the inhabitants of the Civil Colony of Refugio.[8]
A preliminary survey of the grant was made in March, 1877, by Deputy Surveyors John T. Elkins and Robert Marmon. Upon arriving at the grant, Elkins and Marmon requested Nanez to show him the corners of the grant. Nanez pointed out an old worn post on top of Tejano Hill and stated that the northwest corner of the grant was located one mile west of the post. He also pointed out a mound of loose rocks at the place known as the Alto de los Cuarones which he alleged was the southeast corner of the grant. Based on this information and the specific language contained in the Surveyor General’s decision, Elkins and Marmon proceeded to run and mark the exterior boundary of the grant. No attempt was made to resurvey the two tracts of land in accordance with the metes and bounds prescribed by Ortiz. The Refugio Civil Colony Grant, according to Elkins and Marmon’s survey, covered 26,130.19 acres of land.[9]
Since Congress had not acted upon Proudfit’s decision recommending the confirmation of the Refugio Civil Colony Grant prior to the creation of the Court of Private Land Claims, the claimants were, therefore, obligated to institute a suit in that court against the United States in an effort to obtain the recognition of their claim. The claimants of the grant had incorporated their interest on March 7, 1884, and appointed three commissioners to hold title to and manage the premises. The Commissioners of the Grant of the Colony of Refugio and William Desauer, the owner of several tracts located in the grant, instituted such proceedings on February 8, 1893.[10] A similar suit was filed on March 2, 1893, by Jesus Ochoa, Jesus Henriques and Vincente Garcia, the owners of certain tracts of land that were located within the grant.[11] Due to the similarity of issues involved in the two cases, they were consolidated by the Court on September 5, 1896. lone L. Morley, the owner of a 160‑acre tract of land located in the northwest corner of the grant subsequently was permitted to intervene in the consolidated case.
The case came up for hearing on July 5, 1898. The plaintiffs offered a large amount of oral testimony and documentary evidence in support of their petition. The United States in turn presented no evidence in opposition to the confirmation of the grant, but asserted that the agricultural tract should be limited to the area described in the original grant and that the pasture tract should be restricted to one square league of land.
In a preliminary opinion, the Court, on September 4, 1898, held that the grant was entitled to confirmation but that such confirmation should be confined to the area set forth in the government’s argument. By limiting the pastoral tract to one league, the tract claimed by Mrs. Morley was excluded from the grant. She promptly requested permission to introduce further evidence in order to prove that her tract was actually located within the grant. This permission was granted and additional testimony was taken by the court on the subject of boundaries, The Court in its decision of July 13, 1901, declined to modify its original opinion.
The first, or agricultural tract, was confirmed to the Corporation of Refugio in trust for the eighty‑three original grantees, their heirs and assigns. The first tract commenced on the west bank of the Rio Grande River as the same was situated in 1852, at a point where an extension of the south boundary line of the Jose Maria Garcia agricultural allotment intersected the western bank of said river; thence west along an extension of the south boundary line of said allotment to a point at the foot of the slopes or drainage of the foothills; thence in a northerly direction along the foot of the foothills, to a point where a prolongation of the northern boundary line of the lands allotted to Jose de la Luz Jaques struck the foot of the slopes; thence east along said line to the west bank of the river; thence south along the west bank of the river to the point of beginning.
The second, or pastoral tract, was confirmed to the Corporation of Refugio. The north boundary of the first tract formed the southern boundary of the second tract. The eastern and western boundaries of the second tract were extensions of the first tract. The northern boundary line of the second tract was to be parallel to the southern boundary line and was to be located far enough north so as to embrace one league of land within the boundaries of the second tract. The Court restricted the size of the pasturage tract to one square league of land because the plaintiffs had not been able to prove that Commissioner Ortiz had authority to grant one and a fourth leagues to the colony for grazing purposes.
The Court also refused to recognize the allotments made by Commissioner Garcia to the new settlers in the area south of the grant in the vicinity of La Union. Title to the strip of land claimed by the colony lying between the base of the foothills was also rejected by the Court. The Court qualified its decision, however, by stating that if the Rio Grande River of 1852 was found to be located within the boundaries of the State of Texas, then the eastern boundary line of said tracts were to extend only to the western boundary of Texas instead of to the old riverbed.[12] The United States Attorney reported that he did not believe the government should appeal the decision. He reasoned that the boundaries as fixed by the court were as favorable to the government[13] as could be hoped for in any event.
After the Court handed down its decision, the Surveyor General advised the Court that he was encountering difficulty in securing a contract with a Deputy Surveyor for the surveying of the grant because of the confusion and doubt concerning the proper location of the river as it existed in 1852. If the Court rejected the survey on the grounds that the surveyor had not located the river bed accurately, the surveyor would then have to bear the financial loss. The Surveyor General felt that since the location of the river was a question of fact, it should be determined by the Court instead of a Deputy Surveyor. The Court’s attention was called to the fact that in 1852, the boundary between the United States and Mexico was located in the center of the Rio Grande.
The Court, on December 14, 1901, amended its original decision by providing that the east boundary of the grant should be located in the center of the river of 1852 instead of along its western bank. In order to obtain a more definite description of the location of the Rio Grande as it ran in 1852, the Court appointed Clayton G. Coleman as a Special Commissioner with authority to determine by a metes and bounds survey the location of the middle thread of the Rio Grande River as it ran in 1852.[14]
The Court by decree dated August 20, 1902, approved the survey and report of Commissioner Coleman as correctly locating the center of the river as it ran in 1852. After location of the center of the river as it ran in 1852 had been judicially determined, an official survey of the grant was ordered. Tracts one and two of the Refugio Civil Colony Grant were surveyed in December, 1903, by Wendell V. Hall, U.S. Deputy Surveyor, under Contract No. 362. Tract one of this survey contained 7,184.02 acres and tract two embraced 3,450.38 acres.[15] The Commissioners of the Refugio Colony Grant on May 12, 1904, filed a protest against the approval of the Hall Survey. Among other objections, they stated that the survey did not follow the middle of the Rio Grande bed as it ran in 1852 and that tract two did not contain one square league of land. These objections were based on a private survey of the grant made by Charles L. Post. The Post Survey of the grant attempted to show that the Coleman Survey located the east boundary of the grant some distance to the west of the center of the Rio Grande, which Post showed as running in approximately the same position as the Elkins and Marmon Survey of 1877. The Court of Private Land claims rejected the protest and approved the Hall Survey on June 14, 1904.[16] A patent covering the 11,524.3 acres of land covered by the two tracts which comprised the Refugio Civil Colony Grant was issued to the Corporation of Refugio on June 6, 17 1910.[17]
Under the provisions of the Act of February 3, 1911,[18] persons claiming title to land within the rejected portion of the Refugio Civil Colony Grant under 'conveyances issued by the grant officers prior to August 20, 1902, were authorized to “make an entry” for the land they occupied and claimed. Pursuant to the provisions of this special relief act, most of the innocent parties who had developed and improved specific tracts of land in the good faith and belief that their lands were embraced within the grant finally received legal title to their homes and farms.
A further reduction of the acreage contained within the Refugio Civil Colony Grant occurred in 1928, as a result of the United States Supreme Court’s decision in New Mexico v. State of Texas.[19] In this case, the Court held that the boundary between New Mexico and Texas from 32° down to 31° 47' North Latitude was located in the middle of the channel of the Rio Grande River as it existed on September 19, 1850,” and in that year the river was actually located west of a portion of the patented east boundary line of the Refugio civil Colony Grant. The patent to the Refugio Civil Colony Grant was therefore declared invalid, insofar as it covered any land located within the boundaries of the State of Texas.
The final settlement of its boundary dispute along the Rio Grande River for all practical purposes marks the end of the history of the Refugio Civil Colony Grant. All of the colony’s lands have long since been distributed among its inhabitants and the original settlement of Refugio de los Amoles, from which the colony took its name, is no longer in existence.
[1] Refugio de los Amoles was located on the west bank of the Rio Grande approximately one and a half miles west of the present town of Anthony, Texas. The settlement was damaged during a river flood in 1865, and was finally destroyed by the floods of 1884 and 1885.
[2] The Spanish term “suerte” was used to designate an individual allotment or irrigable land. The word means “chance” and arose from the practice of distributing land by 1st. By virtue of this practice, the word is now defined in some Spanish dictionaries as any tract of land with specific boundaries. A suerte in the Refugio Civil Colony Grant: denoted a 700 by 250 vara tract, or approximately 29.75 acres of land. The Colony of Refugio v. United States, No. 150 (Mss., Records of the Ct. Pvt. L. Cl.).
[3] Exec. Doc. No. 56, 43d cong., 1st Sess., 48‑52 (1874).
[4] lbid.,21‑26.
[5] Ibid., 41‑61.
[6] The fallacy of this interpretation is clearly evident when the Sanchez Grant is considered. The Sanchez Grant was made shortly after the Refugio Civil Colony Grant and covered the land located between the Garcia allotment and the Santa Teresa Grant. Alvarez v. United States, No. 280 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] Deed Records 345 (Mss., Records of the County Clerk’s Office, Las Cruces, New Mexico).
[8] The Refugio Civil Colony Grant, No. 90 (Mss., Records of the S.G.N.M.).
[9] Ibid.
[10] The Grant of the Colony of Refugio v. United States, No. 150 (Mss., Records of the Ct. Pvt. L. Cl.).
[11] Ochoa v. United States, No. 193 (Mss., Records of the Ct. Pvt. L. Cl.).
[12] Journal 247‑250 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] Report of the United States Attorney dated July 29, 1901 in the Case of The Colony of Refugio v United States (Mss., Records of the General Services Administration, National Archives, Washington, D.C.), Record Group 60, Year File 9865‑92.
[14] Journal 283‑284 (Mss., Records of the Ct. Pvt. L. Cl.).
[15] The Refugio Civil Colony Grant, No. 90 (Mss., Records of the S.G.N.M.).
[16] Journal 351‑352 (Mss., Records of the Ct.Pvt. L. Cl.).
[17] 43 Deed Records 896 (Mss., Records of the County Clerk’s Office, Las Cruces, New Mexico).
[18] An Act to quiet title to certain land in Dona Ana County, New Mexico, Chap. 35, 36 Stat. 896 (1911).
[19] New Mexico v. Texas, 275 U.S. 279 (1928).
Refugio Civil Colony Grant; J.J. Bowden's Research on Land Grants;