by J. J. Bowden
After the signing of the Treaty of Guadalupe Hidalgo in 1848, numerous residents of New Mexico, who did not desire to become citizens of the United States, moved to Mexico. Many of these emigrants settled in the area west of the Rio Grande River in the upper Mesilla Valley, which was then located within the State of Chihuahua. Upon assuming his duties as General Commissioner of Emigration in 1849, Ramon Ortiz found that these emigrants had established settlements at Mesilla and Santo Tomas and were cultivating most of the bottom lands adjacent to these towns. The residents of Santo Tomas petitioned Ortiz for a colony grant, but he denied the request on the grounds he did not consider the settlement at Santo Tomes as a separate and distinct colony, since there was only a short interruption between the houses of the two villages. Ortiz then proceeded to establish a single colony embracing both settlements. On January 20, 1852, he established the Mesilla Colony and set aside for its use three and one‑half leagues of land for agricultural purposes, and one and one‑fourth leagues for general grazing purposes. He also designated lands for a public park, the gathering of fire wood, and pasture for domestic animals. Ortiz allotted and distributed a large number of individual agricultural tracts and town lots within the Mesilla Colony to the inhabitants of Mesilla and Santo Tomas during the years 1852 and 1853.[1]
Before Ortiz had performed all acts necessary to vest title to the grant in the inhabitants of the Mesilla Colony, President Mariano Arista’s government was overthrown and Ortiz was removed from office early in the year 1853. Guadalupe Miranda was appointed as Ortiz’s successor. Miranda held that the settlement of Santo Tomas constituted a separate colony and proceeded to divide the original Mesilla Colony into the Mesilla Civil Colony and the Santo Tomas de Yturbide Colony. On August 3, 1853, Miranda granted two leagues of land to the Colony of Santo Tomas de Yturbide. The grant was made under authority of and in conformity with the Regulation of May 22, 1851[2] and covered the following tracts of land:
First Tract:
A league of agricultural land beginning at a monument on a little arm of the river which marks the southeast corner of the Mesilla Civil Colony Grant; thence west 5,000 varas along the south line of the Mesilla Civil Colony Grant to a monument on top of a sand hill opposite the ruins of the Guerras Corral; thence south along the foothills 7,500 varas to a monument located on the north line of the Jose Manuel Sanchez Baca Grant; thence east 2,500 varas to a monument located on the river bank; thence north along the west river bank to the place of beginning.
Second Tract:
A league of common pasture land commencing at the northwest corner of the agricultural tract; thence west 2,500 varas, thence south 7,500 varas; thence east 2,500 varas to the southwest corner of the agricultural tract; thence north, 75,00 varas along the west boundary of the agricultural tract to the place of beginning.
After Commissioner Miranda had finished surveying the grant, he placed the inhabitants of the Santo Tomas in legal possession of the above described lands. In addition to recognizing the individual allotments of land which had previously been issued by Ortiz, Miranda proceeded to distribute the remaining unappropriated agricultural lands located within the grant to the new colonists, who had not received a suerte of land. On September 4, 1853, Miranda reported to the Governor of Chihuahua that he had allotted land and given deeds to the inhabitants of the colonies of Mesilla, Santo Tomas, Guadalupe and San Ygnacio in accordance with his duties as General Commissioner of Emigration. The Governor approved Miranda’s report on September 10, 1853, and ordered that the colonists be secured in their rights.[3]
No attempt was made to secure the recognition of the Santo Tomas de Yturbide Colony Grant until January 24, 1855. On that date Mariano Barela and twelve other interested parties petitioned the Surveyor General’s Office of the Territory of New Mexico for the confirmation of the grant. In support of their claim, they filed what purported to be a certified copy of the original grant papers, and also introduced oral testimony tending to show that the Colony’s copy of the grant papers had been lost during a flood of the Rio Grande in 1862. On May 16, 1855, Surveyor‑General Clarence Pullen reported to the Commissioner of the General Land Office that the Santo Tomas de Yturbide Colony Grant was a valid grant and recommended its confirmation by Congress. [4]
President Cleveland shortly after his inauguration in 1885, appointed William A. J. Sparks as Commissioner of the General Land Office and George W. Julian as Surveyor General of the Territory of New Mexico. Both Sparks and Julian believed that Pullen and his predecessors had failed to adequately investigate the validity of Spanish and Mexican land grants in New Mexico and had thereby caused the Government to be despoiled of a million acres of land. Based upon this assumption, Commissioner Sparks promptly instituted a partisan investigation of all New Mexican private land claims. Pursuant to this policy, Commissioner sparks returned the report to Surveyor General Pelham and instructed him to refer the claim to George W. Julian upon his arrival in New Mexico for his further investigation.
Shortly after he entered office, Julian proceeded to re‑examine the Santo Tomas de Yturbide Colony Grant. In a Supplemental Opinion dated August 25, 1885, Surveyor General Julian conceded that Commissioner Miranda had authority to issue the valid colony grant, but recommended the claim be rejected because there was no evidence that the grant papers introduced by Mariano Barela were genuine, that the grant had been recorded in the Archives of Mexico as required by the Gadsden Treaty, or that the claimants were the original grantees or their successors. [5]
Mariano Barela, the purchaser of a large number of the individual tracts lying within the Santo Tomas de Yturbide Colony Grant, realized that unless the objections raised in Surveyor General Julian’s Supplemental Opinion of August 25, 1885, were promptly cured, Congress would undoubtedly refuse to confirm the grant. To satisfy these objections, Barela obtained an exemplified copy of the grant papers from the Archives of El Paso del Norte and filed it in the Surveyor General’s Office. He also filed an abstract which evidenced his title to a major portion of the grant. Surveyor General Julian in a letter to the Commissioner of the General Land Office dated July 1, 1886, stated that if these documents had been before him when he wrote his Supplemental Report, he would have reached a different conclusion.[6]
The reluctance of the Congress of the United States to confirm Spanish and Mexican land grants in New Mexico after 1879, delayed further action on the Santo Tomas de Yturbide Colony Grant until after the establishment of the Court of Private Land Claims in 1891. Mariano Barela died on September 26, 1892, and his interest in the grant was devised to his mother, Rafaela G. Barela, a widow. Rafaela G. Barela and Ramon Gonzales, the owner of a number of individual tracts in the Santo Tomas de Yturbide Colony Grant, instituted proceedings in the Court of Private Land Claims against the United States on February 28, 1893, requesting the confirmation of the grant. The suit was brought by the plaintiffs in their individual capacity and as a class action for the benefit of all others who owned or claimed an interest in the grant.[7]
The cause was heard by the Court on July 5, 1898. At the trial, the plaintiffs introduced voluminous oral and documentary evidence supporting their position. The Government introduced no contradictory evidence, but attacked the claim on the grounds that the plaintiffs did not have authority to institute the suit on behalf of the other claimants, that the granting officer had no power to issue the concession, and that it had not been duly recorded as required by the Gadsden Treaty. In a preliminary decree dated September 4, 1899, the Court found that a class action could be brought by the plaintiffs for the benefit of all the claimants of the grant, that Miranda had authority to make the concession, that the Archives of the Ayuntamiento of El Paso del Norte constituted a record within the meaning of the Gadsden Treaty, and that the Santo Tomas de Yturbide Colony was a valid grant which the Government was bound to recognize under the Gadsden Treaty. The Court, therefore, held that a decree of confirmation should be entered in the case. Shortly after the announcement of its preliminary decree, the Court appointed a Special Agent to investigate the boundaries and extent of the grant. His report was accepted by the Court and it embodies his description of the grant in its final decree of May 2, 1900.[8] In this decree, the Court held that the grant consisted of a tract of agricultural land and a tract of pasture land described as follows:
Tract 1
Beginning at the foothills on the west side of the present bed of the Rio Grande del Norte where there is a hill on top of which was placed the original landmark (a pile of stone which can still be seen), running thence for the west boundary in a southeasterly direction along the slopes or drainage of the hills to the most prominent point of a black mesa, which is a mile or more northwest of the Plaza of San Miguel; thence for the south boundary east to an intersection with the west boundary of the Hugh Stephenson Grant to the northwest corner thereof; and thence for the north boundary by a direct line to the beginning, excluding any portion of the Hugh Stephenson grant which may be included within these boundaries by reason of the last named or north boundary crossing the boundary of said Hugh Stephenson Grant.
Tract 2
Beginning at the northwest corner of Tract 1, and running thence for the north boundary west two miles 48.33‑1/3 chains; thence for the west boundary in a southeasterly direction on a line parallel to the west. boundary of Tract 1 two miles 48.33‑1/3 chains; thence for the south boundary east to an intersection with the west boundary of Tract I; and thence along the west boundary of Tract 1 to beginning.
The Court concluded its decision by confirming the title to the grant insofar as it covered the agricultural tract in the numerous individuals to whom it had been completely distributed by Commissioners Ortiz and Miranda. The title to pasture tract was vested in the persons who were bona fide residents of the Colony on December 30, 1853.[9]
The Government’s attorney reported to the Attorney General that although he had some doubts as to the correctness of the decree insofar as it held that the grant had been legally made and duly recorded, he was not sufficiently confident of his position to feel justified in recommending an appeal be taken to the Supreme Court. As a result of his report, the United States did not appeal the action and the Court’s decree of confirmation was allowed to become final.[10]
An official survey of the Santo Tomas de Yturbide Colony Grant was made in January, 1901, by Jay Turley, United States Deputy Surveyor. Turley was instructed by the Surveyor General’s Office to locate the east line of the Santo Tomas de Yturbide Colony Grant coincident with the west line of the Bracito Grant[11] as surveyed in 1893, by Deputy Surveyor Leonard M. Brown. Based upon Turley’s survey, the grant was comprised of three separate tracts. The first contained 2,137.89 acres, the second covered 3,033.91 acres, and the third embraced 88.13 acres or a total of 5,259.93 acres instead of 8,000 acres as originally claimed by the petitioners. Rafaela G. Barela objected to the approval of the Turley survey, insofar as it pertained to a position of the east boundary lines of the first tract between stations numbered 45 and 96, inclusive, on the ground that it did not depict the true location of the west boundary of the Bracito Grant. She pointed out that the east bank of the river as it ran in 1854 formed the western boundary of the Bracito Grant. She contended that Turley had erroneously located the east boundary of the Santo Tomas de Yturbide Grant approximately two miles west of its true location. She asserted that as a result of this error approximately 4,690 acres of land had been excluded from Tract 1. In support of her claim, Mrs. Barela attached a plat of a private survey made by Fred H. Prietz showing the location of the east boundary of sand Tract 1 under her theory.
Clayton G. Coleman, Special Agent for the Department of Justice, was appointed to investigate Mrs. Barela’s protest. He made an on‑the‑ground investigation of the area in conflict and reported that Turley’s survey of the grant did not correctly locate the east bank of the old river bed of 1854 below Station 45, but departed therefrom at a right angle crossing an eight‑foot river bank, and running west approximately two miles to the foot of the slopes; thence south approximately five miles; and thence east until it intersected the true river channel as it ran in 1854 at Station 96. Coleman concluded his report by stating that the Prietz survey represented the river channel of 1854 as he found it on the ground.
After considering Mrs. Barela’s protest, Mr. Coleman’s report and Mr. Turley’s testimony that he had been instructed to follow the Brown survey of 1893, the Court of Private Land Claims in a decision dated April 5, 1902, rejected Jay Turley’s survey of the Santo Tomas de Yturbide Colony Grant insofar as it covered the east boundary of the first tract between stations 45 and 96. The Court then ordered a resurvey of the east boundary of said tract between those stations, and directed that the resurvey be made so as to conform with the bank of the river channel as it ran in 1854 as delineated by Clayton G. Coleman.[12] Jay Turley resurveyed the Santo Tomas de Yturbide Colony Grant in December, 1902, in accordance with the Court’s instructions. His resurvey disclosed that Tract 1 contained 6,500.3 acres instead of 2,137.89 acres. Thus, the Turley resurvey showed that the Santo Tomas de Yturbide Grant combined a total of 9,622.34 acres of land.
Upon learning of Turley’s resurvey, Nathan D. Lane, the owner of a substantial portion in the Bracito Grant, protested the approval of the Turley resurvey. His objections were based on the grounds that the resurvey failed to locate the bed of the Rio Grande River as it existed in 1854, but had placed the common boundary between the two grants 1/2 mile to 3 miles east of its true location. Lane requested the court to order a new survey of the common boundary between the two grants in accordance with the Stephen Archer Survey of 1854. The Court of Private Land Claims dismissed Mr. Lane’s protest as being unsupported by the evidence and approved Jay Turley’s resurvey of the Grant in its decision dated June 26, 1903.[13]
After the decision of June 26, 1903, the Government proceeded to issue a patent to the forty‑two original grantees and any other persons who were bona fide residents of he Santo Tomas de Yturbide Colony on December 30, 1853. The patent was dated October 17, 1905, and covered the 9,622.34 acres[14] of land embraced within three separate tracts.
[1] The Santo Tomas de Iturbide Colony Grant, No. 139 (Mss., Records of the S.G.N.M.).
[2] S. Exec. Doc. No. 56, 43d Cong., 1st Sess., 21‑26 (1874).
[3] The Santo Tomas de Yturbide Colony Grant, No. 139 (Mss., Records of the S.G.N.M.).
[4] Land Claims Records 232‑252 (Mss., Records of the S.G.N.M.).
[5] H.R. Exec. Doc. No. 196, 49th Cong., ls Sess., 1‑3 (1886).
[6] Exec. Doc. No. 113, 49th Cong., 2d Sess. 8 (1887).
[7] Barela v. United States, No. 137 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] lbid.
[9] 4 Journal‑ 153-156 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Report of the United States Attorney dated June 26, 1900, in the Case Barela v United States (Mss., Records of the General Services Administration, National Archives, Washington, D.C.), Records Group 60, Year File 9865‑92.
[11] After Hugh Stephenson acquired the north two‑thirds of the Bracito Grant in 1851, it was frequently referred to as the Hugh Stephenson Grant.
[12] 4 Journal 298‑300 (Mss., Records of the CL. Pvt. L. Cl.).
[13] 4 Journal 344‑345 (Mss., Records of the Ct. Pvt. L. CI.).
[14] 46 Deed Records 615 (Mss., Records of the County Clerk’s Office, Las Cruces, New Mexico).
Santa Tomas de Iturbide Grant; J.J. Bowden Grant; New Mexico Territorial Era