by J. J. Bowden
Bartolomé Baca petitioned Acting Governor Facundo Melgares on February 4, 1819, asking for a grant covering a tract of vacant land situated east of the Abó Mountains at the place called Torreón as a pasturage for his extensive herds of sheep, cattle, and horses. He described the requested tract as being bounded:
On the north, by the Monte del Cíbolo; on the east, by the Estancia Springs; on the south, by the Ojo del Cuerbo; and on the west, by the Abó Mountains.
He stated that if the requested tract was granted to him, he would establish a permanent ranch upon the premises and consolidate his herds which then were located at a number of different places, and thus, protect them from the contingencies which they faced as a result of being exposed at so many scattered places. He pointed out that by having them all at one place, his “boys” and “armed men” could defend them against the incursions of the Indians. He also noted that there were certain arable lands upon the grant which he could place under cultivation by constructing a reservoir and irrigation system. By instrument dated July 2, 1819, Melgares decreed:
As he prays for, according to law, and with the under standing that no injury results to a third party, but rather stock raising and cultivation will be enhanced under the conditions asked, Mr. José García de la Flora will proceed to give the possession, designating limits and officiating duly, which, being concluded, he will transmit the expediente to this superior office, so that if it be approved, the corresponding testimonio may be ordered to be given the petitioner.[1]
In obedience to and in conformity with Melgares’ instructions, Garcia, the Alcalde of Tome, went to the grant on September 12, 1819, with his attending witnesses and Baca, who the alcalde described as being a captain in the Volunteer Militia at Albuquerque, who:
by his merits and conduct in the service of both majesties, as has been proven in the trusts which have been conferred upon him as Chief Alcalde and in other field service, their excellencies, the governors, always recommending for him the command as Captain on military campaigns and incursions, and which he has always executed with honor and valor, and, in addition to all this, in voluntary gratuities he has always surpassed others, affording good examples to his inferiors.[2]
Therefore, as a reward for such services, García proceeded to place Baca in legal possession of the grant and designated the following natural objects as its boundaries:
On the north, Ojo del Cíbolo; on the east, Pedernal Hill on the south, Ojo del Cuerbo following its range to Ojo del Chico; and on the west, the summit of the mountains.
Baca accepted possession of the grant and obligated himself to develop the limited water sources located within the boundaries of the grant in order that his herds might be able to subsist. The act of possession closes with a recitation that it is being forwarded to Melgares so that he “may determine as it shall deem just”. At the bottom of the Act of Possession is an indorsement by Melgares but it is so multilated that the only words which can be made out are “the limits by” and “…elgares”.[3]
While Baca continued to live at San Fernando and never personally moved to the grant, he promptly commenced using it as pasturage for his livestock. At one time he was grazing 40,000 head of sheep, 900 head of cattle and 300 mares upon the grant. He also constructed a large ranch log house at Estancia Springs for his sons, José, Juan, and Manuel, who managed the ranch for him. A number of corrals were built at various places on the ranch. The grant was never extensively cultivated and an irrigation system was never constructed, but Baca’s peons opened a small field near the present Town of Manzano. While the Indians were always hostile, Baca was able to profitably operate his ranch until about 1833, when the Navajos stepped up the killing of his shepherds and the driving off of his sheep to the point where it was neither safe nor profitable. Therefore, lie moved his livestock off the grant and temporarily abandoned the property. Following Baca’s death in 1834, his widow and heirs never attempted to reoccupy the grant. Baca’s consent. Between 1931 and 1845, five additional grants—The Nerlo Antonio Montoya, Town of Tajique, Town of Chililí, Town of Torreón, and Antonio Sandoval—were made within the out boundaries of the Bartolomé Baca Grant.
Meanwhile, many of his peons moved the Town of Manzano, which had been granted a tract of land in 1829, with Baca’s widow, heirs and descendants asserted no claim to the grant until 1877, when Baca’s grandson, Bartolomé Chávez y Baca, found the original grant papers amongst his father’s effects. Shortly thereafter, Baca’s heirs sold the grant to their second cousin, Manuel Antonio Otero. On September 13, 1878, Otero presented his claim to Surveyor General Henry M. Atkinson for examination. The heirs of Gervacio Nolan, as claimants of the Estancia Grant, protested the confirmation of the claim on the grounds that an acting governor had no power to make a valid grant, that the alcalde had no authority to enlarge the purported grant, that the expediente had not been returned for the approval of the governor as directed; and that the grant had been abandoned and large portions thereof subsequently had been regranted to third parties.
After an extensive investigation, Atkinson rendered an Opinion on September 7, 1881, wherein he held that while the title papers presented appeared to be genuine, they did not amount to a complete grant. He also found the claimant’s title papers were the testimonio of the grant and that its expediente could have been lost as a result of the mishandling of the archives by the Americans after their occupation of New Mexico. However, he stated that he did not believe that Melgares’ decree amounted to a grant but was merely an order directing the alcalde to investigate and report upon the matter or, in the alternative, if it was a granting decree, it was made subject to the condition subsequent that the Act of Possession be returned for approval. In either event, the failure to secure Melgares’ subsequent approval was a fatal defect rendering the claim one which the United States was under no obligation to recognize. Based on all these facts, Atkinson believed that the 1819 proceedings were not intended to be a grant but merely a license giving Baca temporary permission to pasture his livestock upon the premises. Having reached this conclusion, Atkinson held that it would not be necessary for him to pass upon the question as to whether or not an acting governor had authority to make a valid grant. In conclusion, Atkinson found that even if it were assumed, for the sake of argument, that the grant was valid, it had been forfeited when Baca’s heirs abandoned it and the Mexican government regranted major portions of the premises to third parties. Therefore, he recommended the rejection of the claim.[4]
Manuel Antonio Otero died on February 27, 1882, and his son, Manuel B. Otero was appointed administrator of his estate. Since Manuel Antonio Otero had been in actual possession of the grant, and at the time of his death was grazing about 35,000 head of sheep on the property, Manuel B, Otero also took over the management of the ranch. The headquarters of the ranch was located at Estancia Springs.
The heirs of Gervacio Nolan attempted to sell their interest in the conflicting Estancia Grant to Manuel for $5,000.00. However, Manuel’s attorneys advised against the purchase, saying that the title to the Estancia Grant was absolutely worthless. Miguel Antonio Otero, in his book, states:
Even though they considered the title a mere holdup and declined to trade with Fernando Nolan, I was thoroughly of the opinion that they ought to make the purchase to quiet a conflicting claim to the original Baca Grant, and, had they have done so, no possible trouble, such as the shooting affair at a later date, would have arisen. Furthermore, possibly with no opposition, the Bartolome Baca land grant would have been approved. However, be that as it may, they did not think the title was worth anything and would not buy it from the Nolan heirs, who sold their title to Joel P. Whitney, of Boston, and trouble at once began.[5]
The shooting incident mentioned by Miguel occurred at the Otero hacienda at Estancia Springs on August 17, 1883, It seems that Joel P. Whitney’s brother, John, had come to the ranch to discuss the problem of their conflicting interests with Manuel shortly after the New Mexico Supreme Court had upheld Whitney’s title to the Estancia Grant by affirming the district court’s decision ejecting Robert McAfee from the grant.[6] After a rather friendly meeting, they agreed to leave the settlement of their differences to the courts. Upon concluding their business, Manuel, Whitney, Charles H. Armijo, and Alexander Fernandez commenced playing poker. Each had several drinks during the games, and all were feeling rather friendly and jolly. The game lasted all night, and early next morning it was agreed that Manuel would surrender possession of the grant to Whitney, pending the final decision of the courts. After breakfast, Manuel and Armijo left the ranch headed for La Constancia. On the road they met Manuel’s brother‑in‑law, Dr. E. C. Henriquez, who was greatly displeased over Manuel’s actions. He insisted that they immediately return and retake possession of the grant. On the way back they indulged in a few drinks. Meanwhile, back at the ranch, Whitney was also celebrating his apparent victory by having a few more drinks. Thus, by the time Manuel reached the hacienda, everyone concerned was rather intoxicated. Henriquez insisted that Whitney get off the property unless he could produce a court order giving him possession of the premises. Henriquez was right in his contentions but was taking a desperate chance, for everyone had become agitated. Manuel’s party went inside; he sat down, tilted his chair back, and said, “Since meeting Dr. Henriquez, I have found out from him that you should have shown me a writ from the court allowing you to take temporary possession of the Estancia Springs. Now, if you have such a writ, I would like to see it”.[7] After a moment of silence, Whitney, without warning, pulled his pistol and fired a shot from point blank range at Manuel, shouting, “Here is my writ, now look at it!” The bullet hit Manuel on the right side of his neck just below the jaw. Manuel pulled his gun and fired. His bullet struck Fernández, who had jumped in between Manuel and Whitney, presumably for the purpose of preventing trouble, a fatal blow. Thereafter, shooting became general, and when the smoke cleared, Manuel and Fernández were dead, and Whitney and Henriquez were wounded. Whitney was tried for murder on April 24, 1884, but was acquitted on the ground that he had acted in self-defense.[8]
Since Congress had not acted upon Atkinson’s recommendation, Manuel Antonio Otero’s widow, Eloisa L. Bergere, who had since remarried, filed suit in the Court of Private Land Claims on January 9, 1893, for the confirmation of the grant, which was estimated to contain about a half‑million acres of land.[9] When the case came up for trial, the government advanced the following special defenses against the recognition of the claim:
1. The grant was at best an equitable claim and therefore subject to being forfeited upon its abandonment and that the subsequent regranting of major portions of the grant by the Mexican government evidenced its forfeiture.
2. The grant was made upon the condition that it be approved by Melgares and since such condition had never been performed, it was not entitled to confirmation.
3. Since the grant papers came from private sources and there was no evidence of it in the archives, it was not entitled to confirmation.
4. An acting governor had no authority to make a complete and perfect grant.
Since Baca asserted no claim to the grant in his will, it indicated that he had abandoned the grant. Bergere rejoined by arguing and pointing out:
1. Each of the conflicting grants was made subject to the rights of third parties.
2. The grant papers indicated that they had been returned to Melgares and he had taken some type of action thereon, which, presumably, was the necessary approval.
3. The Spanish law did not require the filing of the expediente in the archives and it was frequently delivered to the grantee as evidence of his title.
4. Melgares had made at least eleven other grants, seven of which had been confirmed by Congress.
A majority of the court, in an opinion dated September 29, 1894, held that since the grant had not been approved, Baca had obtained only an equitable title to the premises which had not been forfeited by the regranting of portions of the grant. Therefore, it confirmed the plaintiffs claim to the extent of eleven square leagues of land to be selected within the out boundaries of the grant. In this connection; it should be noted that since the court had found the grant to be imperfect, Section 13 of the Act of March 1, 1891[10] required it to limit the confirmation to a maximum of eleven square leagues.[11] Justices Thomas C. Fuller and William W. Murray dissented on the grounds that an acting governor had no authority to make a perfect grant, that Baca’s equitable claim had been forfeited by the regranting of the land, and Baca had acquiesced in such action. Therefore, the claim should be rejected in toto.[12]
Both parties appealed, and the United States Supreme Court, on October 18, 1897, reversed the case and remanded it to the Court of Private Land Claims with instructions to enter judgment in favor of the government. The Supreme Court, in its decision, found that the grant had been made subject to the condition that it be approved by the governor and such approval was necessary in order to make the grant effective. Confirming, the court held that the burden of showing this approval rested with the plaintiff, and unless she sustained this burden, her claim must fail. There was no approval to be found upon the papers themselves, and the torn portion of the paper following the alcalde’s report has no word of approval thereon. While the plaintiff had urged that the papers raised a presumption that the grant had been approved, the court held:
We think no such presumption can be indulged in from an inspection of all of the papers in question, even when aided by other evidence. … There is another fact that we think bears a good deal of force upon the question whether there ever was an approval by the governor, and as connected therewith, whether Baca himself ever thought that he had or claimed to have any title to a property in the lands described in his petition or in the report of the alcalde, and that fact is that he makes no mention whatever of this property in his will.
… After reading the will, the inference is, as we think, irresistible that Baca did not suppose he owned, and made no claim to own the property. … After a full consideration of his case, we must hold there is not sufficient evidence to show that at the time of the cession of the territory of New Mexico to the United States, the predecessors or grantors of the petitioner had any title of any kind whatever, perfect, or imperfect, to the land described in the petition herein, and consequently, there could be no confirmation of any alleged imperfect title or grant.[13]
On January 31, 1898, the Court of Private Land Claims accordingly rejected the claim and dismissed the petition. This effected a restoration to the public domain of a choice tract covering at least half a million acres.
[1] S. Exec. Doc. No. 15, 50th Cong., 1st Sess., 3‑4 (1887).
[2] lbid., 4.
[3] lbid., 4.
[4] The Bartolome Baca Grant, No. 126 (Mss., Records of the S.G.N.M).
[5] Otero, My Life on the Frontier, 100 (1939).
[6] Whitney v. McAfee, 3 N.M. (Gild.) 9, 1 p. 173 (1883).
[7] Ibid., 102.
[8] Ibid, 101‑103 and Weekly New Mexican Review August 23, 1883.
[9] Bergere v, United States, No. 58 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Court of Private Land Claims Act, Chap. 539, Sec. 13, 26 Stat. 854 (1891)
[11] 2 Journal 264 (Mss., Records of the Ct. Pvt, L, Cl.).
[12] Bergere v. United States, No. 58 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] United States v. Bergere, 168 U.S. 66 (1897).
Bartolome Baca Grant; Late spanish colonial period; J.J. Bowden's research on land grants