Ojo de Borrego Land Grant (Part 1 of 2)

Origin of the Ojo de Borrego Land Grant (1768)

Nerio Antonio Montoya was born about 1729 in New Mexico, the son of Diego Antonio Montoya III and María Magdalena Baca. His parents were descendants of the Montoya and Baca families that had arrived in 1600 as settler reinforcements for Governor Oñate’s newly established colony. After Nerio’s father died when he was only about five years old, his mother married Juan Márquez, a Santa Fe presidio soldier, on January 16, 1735. Márquez was later accused of having an affair with another woman, Manuela Abeyta. During the course of the investigation, he and an accomplice strangled María Magdalena Baca to death in her bed on the night of February 23, 1741. Young Nerio, who had been sleeping in the same bed with his mother that night, was the sole witness to the crime. Governor Mendoza sentenced Márquez and his accomplice to four years of exile, as the only definitive proof was the account of Nerio, who as a minor, could not offer testimony under oath.[i]

Now orphans, Nerio and his older brother Cristóbal moved to Albuquerque to live with the family of his cousin, José Baca.[ii] On October 7, 1759, Nerio married María Bárbara de la Peña at the Cathedral in Santa Fe and moved to the ranch of his in-laws located between Santo Domingo and Cochiti Pueblos. In early 1768, Nerio petitioned Governor Pedro Fermín de Mendinueta for a tract of land to raise livestock that he had purchased from Felipe Sandoval Fernández, a soldier at the Santa Fe garrison the previous year on May 6, 1767. Alcalde mayor Francisco Guerrero acknowledge the sale of property for the sum of 250 pesos. The boundaries of the property were designated as: on the north, the Old Pueblo of Cochiti, situated upon the mountain, on the south, a spring of water running down to the little house that is called Cubero’s on the west, the road descending from Jemez to San Felipe and on the east, the land of the aforementioned Pueblo. The land had originally been granted to Diego Gallegos, who had sold it without any written document to Diego Vásquez Borrego. The latter had lived near a spring on the grant for many years, which came to be known as the Borrego Spring. Borrego declared the property in his will and on that basis his heirs had sold it to Sandoval.[iii]

However, Nerio Montoya had discovered that Gallegos had no right to sell the land to Borrego. The spring was royal domain (i.e. public land) according to the original grant to Gallegos[iv] and it was also communal property of the natives of Santo Domingo by sale of another parcel of land to them by the heirs of Gallegos. Nevertheless, Montoya asked for the governor to grant him the site, including the spring, arguing that he was already pasturing his livestock at the site, which was royal domain, and his use of the land was not infringing upon the rights of the pueblos due to it being quite distant from them. He asked for the grant’s boundaries to be set as: on the east, the land grant of the natives of Santo Domingo, on the west, with a mesa that runs north to south looking toward Jemez, on the north, with a spring of water that runs to the north and on the south, the same land grant of the natives of Santo Domingo.

On March 4th, Governor Mendinueta ordered the alcalde mayor of the jurisdiction of the Keres Pueblos, Bartolomé Fernández, to determine the quantity of land claimed by Montoya, whether it was indeed royal domain, and if issuing the grant would cause any conflict with the pueblos of Santo Domingo, Cochiti or Jemez, or with any other individual. On March 7th, Fernández reported back that it was indeed public domain and had no known conflicts, designating the boundaries as: on the east, the lands purchased by the Indians of Santo Domingo Pueblo, on the west, a mesa where the Jemez and Zia roads meet on the way toward Cochiti, on the south, the Jemez road, and on the north, the foot of the Valle mountain. The total distance north to south measured a little more than two leagues and from east to west a little less than two leagues. Based on this information, on that same day, Governor Mendinueta granted, in the name of His Majesty, the lands asked for by Montoya, for him and his heirs on the condition that he settle on them within the length of time prescribed by law and not sell or cede them to any ecclesiastical person.

On March 20th, Fernández summoned the natives of the neighboring pueblos to the place known as San Antonio and ordered them to erect landmarks designating the boundaries of their lands with those of the new grant. He then proceeded with Montoya to conduct the official act of possession, plucking the grass and casting stones toward the four cardinal points, shouting three times, “Long live the King our Sovereign, and may God preserve him!” Fernández recorded the act of possession, signed by two witnesses, Miguel Tenorio de Alba and Bartolomé Fernández de Pedrera, which completed the formalities.

Land Transactions and Early Efforts to Formalize the Claim (1812-1887)

Over the course of his life, Montoya had three wives and at least thirteen children. However, only three children appear to have inherited the land grant: the eldest child from his first marriage, Diego Antonio IV (Montoya-(1)A); and the two eldest children from his second marriage, Rosa (Montoya-(2)A) and Tomás Manuel (Montoya-(2)B). Rosa and her husband Eusebio Rael sold her share to Luis María Cabeza de Baca in 1812. Diego Antonio IV had at least nine children, but only the two eldest inherited the land grant, Nerio Antonio II (Montoya-(1)A1) and María Bárbara (Montoya-(1)A2). Tomás Manuel had at least eight children, but only his eldest, María Francisca (Montoya-(2)B1), inherited the land grant. Nerio Antonio II sold his share to Juan Antonio Cabeza de Baca, the son of Luis María Cabeza de Baca. María Bárbara Montoya’s eldest son Diego Antonio Lucero (Montoya-(1)A2a) appears to have inherited her share. María Francisca Montoya had at least thirteen children, but it appears that only her son José Albino Baca (Montoya-(2)B1a) inherited the land grant. In addition, he purchased some shares from descendants of the Cabeza de Baca family.

Luis María Cabeza de Baca had an even larger family than the elder Nerio Antonio Montoya—at least 23 children with three different wives. But it appears that only three children inherited the grant: Juan Antonio (Baca-(1)B), José Miguel (Baca-(1)H) and José (uncertain which one). Juan Antonio bought an additional share from Nerio Antonio II as mentioned above, and bequeathed the land grant to his six children. José Miguel’s widow María Dolores Sánchez remarried after he died and it appears that her son from her second marriage, Antonio Mares (Baca-^(1)H), inherited her share. José sold his share to José Albino Baca.

The heirs of Juan Antonio Cabeza de Baca (Baca-(1)B) first attempted to formalize the grant with the US Government in July 1871. Describing the land as hilly and distant from water for irrigation, it was suited only for pasturage and timber, not cultivation. The land had not yet been surveyed, but the landmarks stated in the grant papers easily identified its boundaries. The family had remained in continuous possession of the land, using it to pasture their livestock and to extract timber for fuel and for their homes in Peña Blanca. As far as they were aware, nobody resided upon the lands of the grant and no other valid land titles conflicted with it.

The petitioners next listed the heirs of Juan Antonio Cabeza de Baca as follows:

• Jesús María (Baca-(1)B1)

• Tomás (Baca-(1)B2)

• Encarnación (Baca-(1)B3)

• Cesária (Baca-(1)B4). Cesária had married Jesús María Silva but was deceased, leaving as her surviving heirs:

  • Francisco Silva (Baca-(1)B4a)

  • Isabel Silva (Baca-(1)B4b)

  • Jesús María Silva (Baca-(1)B4c)

  • Benito Silva (Baca-(1)B4d)

  • Manuel Silva (Baca-(1)B4e)

• Domingo (Baca-(1)B5). Domingo was also deceased and left as his surviving heirs:

  • Isabel (Baca-(1)B5a)

  • David (Baca-(1)B5b)

  • Santiago (Baca-(1)B5d)

  • Eulalia (Baca-(1)B5c)

• José (Baca-(1)B6)

• Josefa (Baca-(1)B7)

• Altagracia (Baca-(1)B8)

• Nicolasa (Baca-(1)B9). Nicolasa had married Tomás Salazar and was also deceased, leaving as her surviving heirs:

  • Elisa Salazar (Baca-(1)B9a)

  • Refugio Salazar (Baca-(1)B9c)

  • Ciria Salazar (Baca-(1)B9b)

• Tomás de Dolores (Baca-(1)B10)

• Trinidad ((Baca-(1)B11)

They asked for Congress to confirm title to the grant so that it could be surveyed and patented.

The US Surveyor General, Thomas Rush Spencer, began calling witnesses on April 6, 1872 to determine the legality and limits of the grant, and whether the Montoya and Cabeza de Baca families had remained in continuous possession and use of the land. Mr. Spencer died on June 19, 1872 and there is no evidence his successor worked on the case. For unknown reasons, it appears there was a nearly seven-year pause in the investigation. The next US Survey General to examine the case was Henry Atkinson, who reviewed the original grant documents and resumed calling new witnesses on January 21, 1879. Mr. Atkinson determined that the title documents were genuine and in order, had come from the Spanish Archives and that the heirs of the original grantee had continuously occupied the grant to that date. He therefore approved the grant and ordered all the case documents to be submitted to the US Congress on October 20, 1879. On November 10, 1880 the surveyor general approved the preliminary survey of the grant and transmitted all documents to the General Land Office on the 20th that same month.

The case was still pending before Congress in August 1887 as US Surveyor General George Julian wrote a letter to the General Land Office on the 17th of that month indicating that the preliminary survey of the grant had not established its correct location. In response, the Acting Commissioner requested a supplementary report to inform Congress.

Continued in Part 2.

Note: the source of the information regarding the history of the grant can be found in the New Mexico State Archives, Land Grant Case Files, Court of Private Land Claims Case Nos. 95 and 195 and Survey General Report No 118.

[i] Ralph Emerson Twitchell, Spanish Archives of New Mexico, vol. 2, No. 437, available at Ancestry.com at New Mexico, U.S., Civil Records of New Spain, 1621-1821, 1741-1745: Twitchell 437-471 (Serial 10111), Image 2/693. https://www.ancestry.com/search/collections/8831/records/36226

[ii] Virginia Langham Olmsted. “Spanish and Mexican Censuses of New Mexico, 1750-1830” (Albuquerque, NM: New Mexico Genealogical Society, 1981), p. 83.

[iii] The property in question appears to be the ranch located between the San Felipe and Jemez Pueblos, declared by Borrego in his will dated May 5, 1753. See Ralph Emerson Twitchell, Spanish Archives of New Mexico, vol. 1, No. 98, available at Ancestry.com at New Mexico, U.S., Land Records of New Spain, 1692-1916, Collected Spanish Land Files, Serial 10252 Items 53-104, Image 392/443. https://www.ancestry.com/search/collections/60892/records/173466

[iv] The original grant to Gallegos was made on January 13, 1730. See Ralph Emerson Twitchell, Spanish Archives of New Mexico, vol. 1, No. 1346 (p. 399-400). Available at Ancestry.com at New Mexico, U.S., Land Records of New Spain, 1692-1916, Collected Spanish Land Files, Serial 10284 Items 1316-1350. https://www.ancestry.com/imageviewer/collections/60892/images/44758_N2546857_0165-00210. The will of Francisco Varela Jaramillo in 1755 references another parcel of land in the Cochiti area that had been sold to Diego Gallegos and his wife Josefa Gutiérrez. One wonders if this parcel was part of the land ultimately sold to Borrego.