Ojo de Borrego Land Grant (Part 2 of 2)

Petition to the Court of Private Land Claims (1893-1894)

On February 17, 1893, Case No. 95 was filed with the Court of Private Land Claims (CPLC) in Santa Fe on behalf of José Albino Baca ((2)B1a), Robert H. Longwill, Tomas C. de Baca ((1)B10), Antonio Mares (^(1)H), Nicolas de la O ((1)B7b), Emilio de la O ((1)B7c) and David de la O ((1)B7a) asking for approval of the grant, which the preliminary survey had measured at 60,214.13 acres. The survey showed that a portion of the Santo Domingo Pueblo Indian Reservation was included. The petitioners stated that once an official survey was completed, they would exclude any area found to be within the reservation.

On March 2, 1893, Case No. 195 was filed with the CPLC in Santa Fe on behalf of Amado Cabeza de Baca ((1)B2(4)a), Andres de Baca ((1)B2(3)a), Marcos Cabeza de Baca ((1)B2(4)b), Trinidad Delgado ((1)B6) and Antonio Mares (^(1)H). The petitioners asked for the court to decide on the validity and title of the claim, stating that they were unable to establish the precise area and location of the grant without a complete survey, but they estimated it contained 75,000 acres. They acknowledged that although there was a preliminary survey, they had not accepted it as valid and alleged that the survey had not included all the land specified in the original grant documents. In a pre-trial motion, on March 3, 1893, Mariano S. Otero, Marcos Cabeza de Baca ((1)B2(4)b), Amado Cabeza de Baca ((1)B2(4)a) and Librado Cabeza de Baca ((1)B2(4)c) asked to be joined to the petition of Case No. 95.

It appears that several of the plaintiffs bought the land with the intention of capitalizing on the development of the Cochiti mining district. Although the recognition of land grants specifically precluded grantees from claiming any rights to any gold, silver or quicksilver mines or minerals within the boundaries of the grant, unless otherwise entitled by a mining claim, the ancillary economic activities from mining undoubtedly posed lucrative prospects. The Santa Fe New Mexican reported that a new townsite had emerged at Borrego Springs, backed by the Borrego Springs Investment company, which filed articles of incorporation with the New Mexico territorial secretary on April 24, 1894. The incorporators and directors were: Robert B. Willison, Hiram B. Cartwright, Samuel G. Cartwright, James H. Purdy and Amado Cabeza de Baca ((1)B2(4)a). The grant claimants had adopted a “liberal policy” toward those who had located mineral claims on the grant and were “prepared to make even more favorable terms than the government itself.”[i]

On June 26, 1894, the United States Attorney Matt G. Reynolds responded to the petition of Case No. 195 in a formulaic-sounding response that asked the court to reject the claim and dismiss the petition. There was no argument or reasoning behind this response other than that the United States lacked information or knowledge regarding the statements made in the petition and asked for the plaintiffs to make their case before the court. The CPLC began hearing the consolidated cases No. 95 and No. 195 on September 18, 1894. The first witness, Will M. Tipton, was a special agent of the CPLC and custodian of the Spanish Archives of New Mexico. He was also an expert on colonial Spanish handwriting and phraseology, paper, ink, seals and signatures. The plaintiff’s attorney asked him to authenticate several of the documents offered into evidence, which he did.

The next two witnesses, Francisco Delgado ((1)B11a) and José Albino Baca ((2)B1a) were descendants of Luis María Cabeza de Baca and Nerio Antonio Montoya, respectively. They made statements regarding their families’ possession of the grant, how they had come to inherit it, how the land was used and their genealogy. The last witness was Robert. B. Willison, one of the directors of the Borrego Springs Investment Company. He was also a surveyor and civil engineer who had represented a majority of the owners of the land grant before the US Department of the Interior. He was familiar with the grant and had visited it several times a year since 1879 to determine its boundaries. Using this information, he had prepared a plat survey of the grant that was entered as Exhibit 12 in the case. Against the objections of the US Attorney, he provided statements regarding his knowledge of the grant’s location and boundaries.

The CPLC issued its ruling on September 29, 1894. It found that the documents granting the land to Nerio Antonio Montoya on March 7, 1768 by Governor Mendinueta were genuine and executed by the proper officers; the occupation of the land by the families of the petitioners had been proven through testimony; and the petitioners maintained ownership over the land which allowed them to ask the CPLC to confirm the grant. However, the court found that the quantity of land claimed was much larger than what was intended by Governor Mendinueta or could be substantiated by the grant documents. The court acknowledged that it was difficult to ascertain precisely the east and north boundaries of the grant based on the descriptions in the grant papers. However, the report of alcalde mayor Bartolomé Fernández was clear that the size of the grant was “from south to north a little more than two leagues and from east to west a little less than two leagues” whereas the preliminary survey by the Surveyor General’s Office had established the north to south line as measuring about ten miles, and the west to east line about nine miles—which also placed the grant in conflict with land already patented by Santo Domingo Pueblo.

The court argued that while as a general rule, specific boundaries in a grant were to prevail over descriptions of distances, in this case the grant documents showed that a smaller quantity of land was intended and that distance was the controlling question in the mind of the granting officer, the governor. The court also surmised that since accurate surveys could not be conducted in 1768, the governor relied upon the alcalde mayor’s report as to the grant’s boundaries and had no reason to dispute them. Since the intention of the granting officer always took precedence in cases where there were discrepancies in descriptions of grant boundaries, the court defaulted to distance on the basis by which the governor made the grant. It therefore ordered that the exterior boundaries of the grant be fixed as: bounded on the west by a small mesa where the Jemez and Zia roads come together toward Cochiti; on the south by the Jemez road; and measurements taken so that the eastern boundaries and northern boundaries would be set at distances of two leagues, respectively.

Appeal to the US Supreme Court and Final Survey, (1895-1898)

The plaintiffs objected to the reduction in size of the grant and first filed a motion to rehear the case, which the CPLC denied on January 31, 1895.[ii] They next filed a petition for appeal to the US Supreme Court on March 22, 1895. On December 9th that same year, the Supreme Court dismissed the case and remanded it to the CPLC as the appellants had failed to have their cause filed and docketed in conformity to the rules of the court. It does not appear that an appeal to the case was refiled.

On March 6, 1896 the US Attorney transmitted the dismissal to the CPLC and asked it to proceed as though no appeal had been filed. On March 19th the General Land Office authorized the US Surveyor General to award a contract for the survey of the land grant. The survey was completed on December 12, 1896 and found the grant contained 16,157.40 acres, after accounting for 522.60 acres that conflicted with the Santo Domingo Pueblo grant. During the public notice period, the US attorney and the plaintiffs each filed protests of the survey. The US Attorney complained that the final dimensions of the grant showed it to be an irregular multi-lateral shape whereas the decree of confirmation defined it as a square measuring two leagues on each side. The plaintiffs complained that the surveyor had fixed the southwest corner of the grant about three miles south from the point fixed in the decree, leaving the Ojo de Borrego spring outside of the grant boundaries.

The CPLC overruled the objections of both parties and certified the final survey on February 2, 1898. It is perhaps ironic justice that the Ojo de Borrego spring, the grant’s namesake, was returned to the public domain. The Albuquerque Citizen reported that the claimants sought to have the survey extend far enough north to include the lower mining claims in Colla Canyon but that the court’s action disposed of their last effort to encroach upon the “golden Cochiti.”[iii] The Ojo de Borrego Grant was finally patented by President Woodrow Wilson on June 19, 1913.

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] The Santa Fe New Mexican, April 24, 1894, p. 4

[ii] The Santa Fe New Mexican, January 31, 1895, p. 1

[iii] The Albuquerque Citizen, February 4, 1898, p. 2