by J. J. Bowden
Manuel Alvarez, a resident of Santa Fe, petitioned Governor Manuel Armijo on October 15, 1837, for a grant covering a tract of land situated on both sides of the Ocate River, which he described as being bounded:
On the north, by the Caja de las Piedras Colorado; on the east, by the brow of the Ocate to the Canoncito; on the south, by the Sierra Pelon with its chain of mountains; and on the west, by the Jara and Coyote Mesas.
Alvarez stated that he needed the grant as a pasturage for a herd of marino sheep which he planned to bring to New Mexico. He pointed out that the requested tract was in a distant and unprotected part of the territory and, since the land covered thereby was unsusceptible for agriculture, it was improbable that it would be colonized at an early date. He contended that the introduction of marino sheep would increase the quality of sheep and would, thereby, improve the general economy of New Mexico. He closed the petition by agreeing that should he fail to settle upon and commence raising marino sheep on the grant within a period of three years, he would forfeit all of his rights under the concession. Armijo was obviously impressed with the proposal, for on the following day, he wrote an endorsement at the bottom of the petition, wherein he stated that in view of the public good and great advantages that would undoubtedly result to the territory from such a progressive step in industry and commerce, he had decided to grant Alvarez the lands which he had solicited upon the conditions which he himself had named. Armijo also directed the Alcalde of Taos to place Alvarez in possession of the grant. In response to Armijo’s directions, Alcalde Juan Antonio Aragon delivered legal possession of the premises to Alvarez on October 25, 1837. Armijo noted his approval of the proceedings had in connection with the delivery of possession in the margin of the testimonio on November 24, 1837.
During the next five and a half years, Alvarez made no effort to perform the obligations mentioned in his original petition. Fearing that the grant might be forfeited, he petitioned the Alcalde of Taos on March 9, 1843, stating that due to conditions beyond his control he had been unable to carry out his plans and requested him to revalidate the grant. After considering the matter, Alcalde Cornelio Vigil issued a decree which reinstated the grant. However, Alvarez apparently had a serious question as to whether the Alcalde had authority to renew the grant for on December 5, 1845, he petitioned Armijo for a confirmation of the grant. In his petition, Alvarez explained that the invasion of New Mexico by the Texans and other impediments had prevented him from effecting the planned enterprise. He assured the governor that if the grant was confirmed that he would settle upon the land and perform all of the covenants which he had agreed to as soon as his circumstances would permit. Armijo confirmed the grant but failed to condition it upon the performance of such covenants.
Conditions apparently never improved for during the next ten years Alvarez made no effort to occupy the grant. Some eighteen years after its issuance, Alvarez filed a petition[1] in the Surveyor General’s Office on February 7, 1855, seeking the recognition of the grant, which allegedly contained 16 leagues or 69,848 acres. This was the first private land claim filed in the Surveyor General’s Office. No other proceedings were had in the case until October 28, 1860, when the devisees under Alvarez’s will filed a supplemental petition stating that Alvarez had died in the month of July of 1856 and they had succeeded to his interests. A certified copy of the will, together with a brief supporting the claim, were also filed. About this same time, the depositions of a number of witnesses were offered which tended to prove that the signatures of the granting officials were genuine. A counter brief was filed by the government on February 11, 1861, protesting the confirmation of the grant on the ground that the conditions upon which it had been made had never been performed. On May 5, 1871, the claimants filed a brief in rejoinder in which they argued that the confirmation decree of December 5, 1845, was an unconditional grant. At this point, the case became stalemated. Surveyor General George W. Julian, for the first time, conducted an investigation into the validity of the claim. After reviewing the history of the grant in his report, which was dated December 22, 1885, Julian stated that the grant presented a number of problems. The first involved the question of whether or not the grant was genuine and whether the granting officials had authority to make the concession. In answer to these questions, Julian found from a comparison of the signatures on the grant papers with the signatures on documents in archives, that the grant was authentic. He also found that as a general rule the governor of New Mexico, after 1828, had authority to make a grant for agriculture and grazing purposes under the colonization laws and regulations. However, he was of the opinion that the recitation in the translation of the grant papers which stated that it covered four leagues square was erroneously translated and should read four square leagues or 17,712 acres. Julian also noted that Armijo had proclaimed himself governor of New Mexico on August 27, 1837, and, therefore, there was some question as to the validity of such action. However, since Armijo’s usurpation of power had never been contested by the Mexican government, he felt it reasonably could be assumed that he was governor of New Mexico on October 16, 1837. The second problem pertained to the nature of the Alvarez agreement to introduce marino sheep into New Mexico and settle upon the grant within three years. The claimants contended that this was a condition subsequent and that the grant was valid at the date of its issuance subject only to the government’s right to cancel it by a judicial proceeding for failure to comply. However, Julian found that the obligation was a condition precedent and, therefore, the grantee gained no title prior to the performance of the conditions. The third question pertained to the claimants’ contention that the grant had been confirmed by the Alcalde of Taos in 1843. Julian found that this confirmation afforded the claimants no comfort since an alcalde had no authority in 1843 to make a grant of the public domain. The last issue involved the claimants’ argument that the unconditional revalidation of the grant in 1845 by Armijo perfected their grant. In answer to this argument, Julian held that since neither the petition nor decree of December 5, 1845, described the grant but merely referred to it as being the Ocate Grant, the proceedings did not constitute a legal grant. Based on these findings, Julian had no alternative but to recommend to Congress that the claim be rejected.[2]
Since Congress had failed to act upon the claim the owners of the grant were afforded another opportunity to have the claim reinvestigated when the Court of Private Land Claims was created. On March 3, 1893, Eugenio Alvarez and a number of other residents of Algiers, Africa, all claiming to be heirs of Manuel Alvarez, filed suit[3] seeking the recognition of the portion of the grant lying north of the Ocate River. They expressly relinquished any claim they had to the lands lying south of the river since they were situated within the Town of Mora Grant. They also called attention to the adverse opinion which had been rendered by the Surveyor General’s Office, but alleged that the presentation of the claim had been made by “someone without authority.” The United States filed a general answer in the case putting the allegations contained in the plaintiffs’ petition in issue.
In developing the case for trial, the government discovered that there were several hundred homestead entries located within the tract described in the plaintiffs’ petition. The court entered an order on November 10, 1896, making such persons parties defendants.
The cause came up for hearing on October 4, 1898, at which time the plaintiffs’ attorney announced in open court that he had not been able to obtain any advice from his clients and requested that the claim be dismissed without prejudice. The government strenuously objected to such a disposition of the case on the ground that it would not finally dispose of the case but would leave its validity open for future determination. It argued that if the request was granted, the Court would perpetuate the cloud which had been cast upon the title to numerous persons holding land under patents from the United States. On the following day, the Court announced that in its opinion where parties had submitted a claim to the jurisdiction of the Court, there are only two ways by which they may be disposed of —one, by a decree of confirmation, or two, by a decree of rejection. Therefore, the Court held that since the plaintiffs had failed to prosecute their case, a decree of rejection was proper. A decree[4] was entered accordingly. The rejection of this claim relieved the homesteaders of a serious menace to their titles and saved the United States from possible pecuniary liability under the act of March 3, 1891.5]
[1] The Ocate Grant, No. 143 (Mss., Records of the S.G.N.M.).
[2] Ibid.
[3] Alvarez v. United States, No. 231 (Mss., Records of the Ct. Pvt. L. Cl.).
[4] 4 Journal 38 (Mss., Records of the Ct. Pvt. L. Cl.).
[5] Court of Private Land Claims Act, Chap. 539, Sec. 14, 26 Stat. 854 (1891).
Ocate Grant; J.J. Bowden's research on land grants