Zia v. United States
168 U.S. 198 (1897)

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U.S. Supreme Court

Zia v. United States, 168 U.S. 198 (1897)

Zia v. United States

No. 5

Argued October 12, 1897

Decided November 15, 1897

168 U.S. 198

Syllabus

An officer of the Pueblo of Zia and an officer of the Pueblos of Santa Ana and Jemez, in 1766, petitioned the Spanish governor and captain general, setting forth

"that they, from their foundation, have considered as their pasture ground, in the vicinity of their said pueblos, a valley commonly called the Holy Ghost Spring, and that in some urgent cases, the same as is known, is used as a pasture ground for the horses of this royal garrison, and the said parties being aware that the said valley has had, in its vicinity, some applicants to acquire the same by grant, which will cause them very great injury, as they have considerable cattle, sheep, goats, and horses for the royal service, and not having any other place in which to pasture them, particularly the people of the Pueblo of Zia, the greater part of whose fields are upland, and some of them in the glens of said valley, adjoining their said pueblo,"

and asking him to

"be pleased to declare said valley to be the legitimate pasture grounds and pastures of the pueblos, directing that the boundaries thereof be designated to them, that is, on the east, the pueblos aforesaid, on the west, the summits of the Puerco River, on the north, a place called the Ventana, where some Navajo Apaches reside, and on the south, the lands of the citizen settlers of said Puerco River."

On receipt of this petition, the captain general ordered an examination to be made, and, upon the coming in of a favorable report, ordered the alcalde to give royal possession of the grant to the petitioners and the boundaries therein set forth. Held that the language used in the documents indicated nothing more than a right to pasture their cattle upon the lands in question; that the grant did not vest the title to the lands in the petitioners, but was a mere license to use them for pasturage, which license, if not revoked by subsequent grants, was revoked by the Treaty of Guadalupe Hidalgo, ceding the entire territory to the United States, and that the title to the land was not one " lawfully and regularly derived from the government of Spain," nor

"one that, if not then complete and perfect at the date of the acquisition of the territory by the United States the claimant had a lawful right to make perfect, had the territory not been acquired by the United States,"

as provided for in the Act of March 3, 1891, c. 639, creating the Court of Private Land Claims.

This was a petition by the pueblos of Zia, Santa Ana, and Jemez for the confirmation of what is known as the "Ojo del Espiritu Santo Grant," containing about 382,849 acres.

The testimonio, or official copy of the proceedings, opens

Page 168 U. S. 199

with the following petition to the governor and captain general, presented in 1766, by Felipe Tafoya, as the agent of these pueblos:

"His excellency the governor and captain general:"

"I, Felipe Tafoya, lawyer of this Town of Santa Fe, appear before your excellency, in full legal form, for and in the name of Cristoval, Indian governor of the pueblo of Zia, and Thomas, chief war captain of said pueblo, who come under appointment from their casique, and of the other inhabitants of their republic, and, sir, in the name of the aforenamed, and of the community of the pueblos of Santa Ana and of Jemez, do state that they, from their foundation, have considered as their pasture ground, in the vicinity of their said pueblos, a valley commonly called the 'Holy Ghost Spring,' and that in some urgent cases the same, as is known, is used as a pasture ground for the horses of this royal garrison, and the said parties being aware that the said valley has had, in its vicinity, some applicants to acquire the same by grant, which will cause them very great injury, as they have considerable cattle, sheep, goats, and horses for the royal service, and not having any other place in which to pasture them, particularly the people of the pueblo of Zia, the greater part of whose fields are upland, and some of them in the glens of said valley, adjoining their said pueblo. In consideration of all of which, I ask and pray that your excellency, in the name of his majesty (whom may God preserve), be pleased to declare said valley to be the legitimate pasture grounds and pastures of the pueblos, directing that the boundaries thereof be designated to them -- that is, on the east, the pueblos aforesaid; on the west, the summits of the Puerco River; on the north, a place called the 'Ventana,' where some Navajo Apaches reside, and on the south, the lands of the citizen settlers of said Puerco River. And, should your excellency order to be done as I have requested, the said parties, my clients, will receive grace with the justice which I ask, and declare in their name that this is not in dissimulation, and so forth."

"Felipe Tafoya"

Page 168 U. S. 200

Upon the receipt of this petition, and on June 16, 1766, Velez Cachupin, governor and captain general, made an order commissioning the chief alcalde of said pueblos, Bartolome Fernandez,

"to the end that, having examined the boundaries which they mentioned as of the Holy Ghost spring, where they state they pasture their stock and horses, he reports to me the leagues the same may embrace from north to south and from east to west, and whether the aforesaid three pueblos have the cattle, sheep, goats, and horses proportional to the boundaries asked for their grazing, and also whether or not any citizen or citizens are damaged by said boundaries under any prior valid grant and possession held by them, which the said chief alcalde will perform with all possible veracity."

Fernandez reported that he proceeded to examine the lands and their boundaries, and, after establishing the quantity, found that they were

"only suitable for pasturing livestock, which is abundant at said pueblos, though the said three republics have no other lands on which to sustain their stock, and it being, as it is true, that none of the aforementioned boundaries will injure any one holding or to hold possession of lands within the same, which proceedings I placed on record,"

etc.

Upon this report, the captain general made the following decree:

"In the Town of Santa Fe, on the sixth day of the month of August, one thousand seven hundred and sixty-six, I, Thomas Velez Cachupin, governor general of this kingdom of New Mexico, in view of what is petitioned for by the three pueblos of Santa Ana, Zia, and Jemez, of the Queres Nation, and of the report which their chief alcalde, Bartolome Fernandez, makes, that they have held said lands for their livestock, which at present is abundant, without having any other places in which to pasture them, except those referred to in their petition, together with the small watering places mentioned in said report, declare that I would grant, and I did grant, in the name of his majesty (God preserve him), the

Page 168 U. S. 201

aforesaid lands, for pasturing the stock and horses of the aforesaid three pueblos of Santa Ana, Zia, and Jemez, with the boundaries, from north to south, from the place Ventana to the stone ford of the Puerco River; the boundaries, also, of the citizens of the place San Fernando of Nuestra Senora de la Luz, and from east to west, from the pueblo of Zia to the said Puerco River, the eastern edge; the whole of the valley of the Holy Ghost spring being embraced within the center and within the boundaries of this grant, with the condition and stipulation that in case of necessity the horses of this royal garrison of Santa Fe may and shall be kept in said valley, the same being a place where they have been accustomed to graze, wherefore the aforementioned three pueblos are to place no obstacle in the way, nor claim damage therefor; and, the aforementioned boundaries being for the future considered those of the aforementioned three pueblos, they will hold the same with legitimate title under this royal grant, so that they be not molested by any Spanish citizen or citizens taking their stock thereupon, deeming the pasturage to be common. And I direct the chief alcalde Bartolome Fernandez, to go and give to the aforementioned three pueblos royal possession of this grant, and the boundaries therein set forth, taking with him the justices and seniors of each one of them, and placing his proceedings on record, following this my granting decree, which he will return to me, in order to furnish to each pueblo the proper testimonio of the whole, and deposit the original in the archives of this government, where it shall remain."

"And I so provided, granted, ordered, and signed acting with two attending witnesses in the absence of notaries, there being none of any kind in this jurisdiction."

"Thomas Velez Cachupin"

"Witness: Carlos Fernandez"

"Witness: Domingo Sabadia"

In compliance with this decree of the governor and captain general, Bartolome Fernandez, the alcalde, made report to the governor that he proceeded to the aforementioned pueblos,

Page 168 U. S. 202

and in company with the governors, casiques, and other authorities, proceeded to the lands asked for by the natives of the said three republics, and, summoning the contiguous landholders, took by the hand the aforesaid governors and the magistrates,

"and conducted them over said land, and they shouted, 'Long life to the King, our sovereign, whom may God preserve;' and they cast stones, and pulled up grass, in sign of possession, which I gave them, and which they received quietly and peaceably, without any opposition whatever, under the conditions mentioned in the aforesaid grant,"

etc.

The claim was presented to the surveyor general under the law of July 22, 1854, and, through the Secretary of the Interior, reported to Congress for confirmation, but no action was ever taken. The petitioners also produced evidence tending to show that, since the date of the grant, they have been continuously and openly in possession of the property, pasturing their cattle upon it, and cultivating certain portions, under a claim of exclusive right thereto by virtue of the grant; that they are now in the open and notorious occupation of the same, as the owners in fee, except a portion of it which may be in conflict with a certain grant called the "Santissima Trinidad Galvana Ignacio Sanchez Veraga Tract," in regard to which they admit that they have released the same unto the claimants thereof. The continuity and exclusiveness of this possession were denied by the witnesses produced by the government.

In defense, it was shown by the government that three subsequent grants were made (one in 1815, to Luis Maria Cabeza de Baca, known also as to "Ojo del Espiritu Santo Grant;" another in 1786, known as the "San Isidro Grant;" and another made in 1798, known as the "Canyon de San Diego Grant"), in connection with which parol evidence was admitted to show a conflict between these grants and that of the petitioners to a large, if not to the entire, extent of their grant.

Upon this state of facts, the Court of Private Land Claims made a decree rejecting the grant, and dismissing the petition of petitioners, upon the ground that the grant was not in fee, but a license to pasture. From this decree the petitioners appealed to this Court.

Page 168 U. S. 203

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