The claimants have not made out their case by a fair
preponderance of evidence, or such weight of testimony as is
necessary to establish their title to this large tract of land.
This was a petition by Joel Parker Whitney and others filed in
the Court of Private Land Claims for the confirmation of what is
commonly known and called the "Canyada de Cochiti Grant,"
containing over 100,000 acres, and situated on the Rio Grande River
in the County of Bernalillo, Territory of New Mexico. On the day
following, Manuel Hurtado and Jose Antonio Gallego filed a suit
against the United States for the confirmation of the same land,
claiming under the same title. It appearing to the court that these
two suits were for the same property and under the same original
title, the court ordered them to be consolidated, and to proceed as
one cause.
The petition set forth that on the second of August, 1728, the
King of Spain, by Juan Domingo de Bustamente, governor of the royal
province of New Mexico, upon the petition of one Antonio Lucero,
made a grant of a certain tract of land, bounded and described as
follows: on the north by the old pueblo of Cochit; on the east by
the Rio del Norte (otherwise called the Rio Grande); on the south
by the lands of the Cochiti Indians, and on the west by the Jemez
Mountain, with its entrances and exits, watering places, uses, and
customs. That the granting decree for said land was signed by the
governor on said date, and countersigned by Antonio de Cruciaga,
his secretary of state and war, and it directed that the grantee
should be placed in royal and personal possession under the
boundaries described in said petition, and under the conditions
prescribed by the royal ordinances in that behalf as to the
settlement of the same. It also directed that after the possession
of the land had been given to the grantee, the original
Page 167 U. S. 530
expediente should be returned to the governor to the end that
duplicates thereof might be given to the grantee; that, in
execution of said decree, Capt. Andres Montoya, chief alcalde of
the pueblos of Cochiti, Santo Domingo, and San Felipe, gave to the
said Lucero juridical possession of the land on August 6, 1728,
executing and delivering the act of juridical possession on the
premises in due form of law in the presence of his attending
witnesses.
The petition also alleged that the granting decree and act of
juridical possession were returned to the governor and placed in
the royal archives at Santa Fe, New Mexico, and that a testimonio,
or duplicate thereof, was delivered to the grantee, and that the
said testimonio was not in the possession, custody, or control of
the petitioners, but that the same was deposited in the
governmental archives at Santa Fe upon the cession of New Mexico to
the United States, and has ever since been in its custody.
It was also alleged that Antonio Lucero settled upon, occupied,
improved, enlarged, and claimed the land in fee simple openly,
continuously, and uninterruptedly from the date of the act of
possession, August 6, 1728, for a period much longer than four
years, and up to the time of his death, and that he died fully
seised and possessed of the same; that his heirs at law and legal
representatives have ever since continued under the same claim of
title, peaceably occupying and possessing the same, save only in
the year 1785, when it was intruded upon by one Antonio Gallego, a
lieutenant in the military service at the place called "Canyada del
Medio," under pretense of authority from Governor de Anza to occupy
and use the canyada for the pasturage of the royal cavalry,
whereupon, in the month of November, 1785, Antonio Lucero de Godoi
and numerous others, descendants and heirs at law of said original
grantee, presented their petition to Antonio de Armeta, chief
alcalde and war captain, having, as alleged, judicial and
administrative jurisdiction in the premises, complaining of the
said intrusion by the lieutenant, Gallego, and asking for relief in
the premises. It was alleged that, in view of said petition,
Armenta, the said chief alcalde, reported said petition, and
the
Page 167 U. S. 531
subject matter thereof, to the governor; and, upon due
consideration of the petition, the governor found and determined,
and so declared in substance to the chief alcalde and war captain
that inasmuch as the petitioners were in all respects the legal
heirs to the said tract of land, they were entitled to occupy the
same in preference to any other individuals, and the said intrusion
by the said Lieutenant Gallego was unjust and unfounded.
That thereupon the chief alcalde and war captain, under full
authority in that behalf conferred upon him by the said governor,
duly made his order and judgment, reciting the petition, report to
the governor, and the determination of the superior authority
thereon, adjudging and declaring that the said order and judgment,
being an instrument in writing signed by the said chief alcalde and
his witnesses, should remain as conclusive evidence of the rightful
title of the said heirs to the said land granted, and its rightful
acquisition by them and their descendants from the King of Spain,
and by the said instrument the said alcalde, in the exercise of the
judicial jurisdiction legally vested in him, declared that the same
should remain before any tribunal as evidence for all time of the
title of the heirs to the tract of land granted.
That the originals of said petition and adjudicatory instrument
were in the possession of the respondent, and kept in the archives
at Santa Fe.
That the petitioners are interested in said tract under the
original grantee by divers mesne conveyances from his heirs and
legal representatives; and
That all conditions, precedent and subsequent, of the grant at
any time incumbent upon the said grantee, his heirs or assigns,
have been fully performed and discharged.
The answer of the United States put in issue the allegations of
the petition generally, and specifically denied that the alleged
granting decree and act of possession were returned to the governor
and placed in the royal archives at the city of Santa Fe, New
Mexico; denied that a testimonio or duplicate thereof was delivered
to the said original grantee under and by virtue of the direction
of the governor; denied that the
Page 167 U. S. 532
alleged testimonio or duplicate was ever placed in the
governmental archives at Santa Fe upon the cession of New Mexico to
the United States, for the reason that there was no necessity for
nor any law authorizing the same, but that the owners, or alleged
owners, of the grant were the only proper custodians of said
alleged testimonio. It denied specifically that Lucero ever entered
upon the tract of land sued for, and occupied or appropriated the
same, as alleged in said petition. for the reason that it was
impossible and impracticable for him so to do, because, under the
conditions of the country at the time and for more than a century
thereafter, it was impossible for Lucero or any one else to occupy,
appropriate, or use, directly or indirectly, the grant described in
the petition -- all of which Lucero knew at the time he applied for
said grant.
As to the allegation that, in 1785, Antonio Gallego intruded
upon the Canyada del Medio, an alleged portion of said tract, upon
the pretense that he had authority from the governor to use the
same for the pasturage of the royal stock, the government alleged
that it had no knowledge or information; nor as to whether, in said
year, Antonio Lucero de Godoi and others, claiming as descendants
of Lucero, presented a petition to Armenta, chief alcalde,
complaining of said intrusion, and asking for an investigation of
the same or for relief, nor had it any knowledge or information as
to whether Antonio Armenta, alcalde, reported said petition, or the
subject matter thereof, to the governor of New Mexico, nor as to
whether, in passing on said matters, the said alcalde had any
authority to act in that behalf under the authority of said
governor, nor as to whether said alcalde undertook to make a
finding in said matter, nor as to whether he undertook to or did
attempt to make the allegation set forth in the petition, but it
was alleged that, if he did do so, the same was without warrant or
authority of law, and without any direct order from the governor,
and that the said alcalde had no power or authority in that behalf
except such as might be conferred upon him for that purpose by
direct order of the governor of the province, and the government
therefore denied that said
Page 167 U. S. 533
alcalde had jurisdiction in the premises, and denied that any
jurisdiction was shown in that behalf.
It denied that the originals of said petition and adjudicatory
instrument, dated in the year 1785, before referred to, were or
ever had been in the said archives, and alleged that if the same
were in the possession of the surveyor general, they were filed
with him under the law of July 22, 1854, which provided for the
adjustment of private land claims in the Territory of New Mexico,
and that they never constituted part of the archives of the Spanish
or Mexican governments, that no action was ever taken upon said
alleged acts of said justice by the governor of the province, and
therefore it constituted neither adjudication nor admission on the
part of the Spanish government, but was simply an unauthorized and
unapproved act of an alcalde.
Further answering, the government alleged that the petition by
Antonio Lucero was one for a small piece of land on which to
cultivate ten
fanegas of wheat and two of corn, and to
pasture small stock and horses; that the boundaries designated in
said petition were only to indicate the district of country within
which said small piece of land was located; that, in acting upon
said petition, if he ever did, the said governor did not make a
grant, but specially reserved that act until after the alcalde
should have placed the petitioner in possession of the property and
returned the expediente to him for final action, which was never
done, and therefore no grant, either legal or equitable, was ever
made.
Upon a hearing upon pleadings and proofs, the Court of Private
Land Claims was of opinion that the petitioners were not entitled
to the grant to the full extent demanded of 104,554.24 acres, but
that they were entitled to a grant of land
"bounded on the north by the old pueblo of Cochiti, which is
situated on the mesa of Cochiti, on the south side of the canyada
of Cochiti, which point is about 8,190 feet in a northerly
direction from the northwest corner of the lands of the Indians of
the pueblo of Cochiti, as the same has been fixed and determined by
the survey and patent of the same by the United States of
America,
Page 167 U. S. 534
on the east by the Rio del Norte (otherwise called the Rio
Grande), on the south by the lands of the Cochiti Indians, as the
same have been fixed and located by the survey and patent thereof
to the Indians of the pueblo of Cochiti by and under the authority
of the United States of America, and on the west by the same old
pueblo first above referred to as the northern boundary of the
grant hereby confirmed, which said grant of lands contains in area
about five thousand acres of land,"
and that such claim was entitled to confirmation in the name of
the original grantee, Antonio Lucero, for the use and benefit of
all parties in interest, claiming by, through, or under him, by the
same title. Whereupon petitioners prayed and were allowed an appeal
to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Some difficulty in this case arises from the mutilated and
fragmentary condition of the original petition in Spanish, and the
grant of the land prayed for, purporting to be of the same date,
and supposed to have been made by Bustamente, governor and captain
general of New Mexico. The original petition, as it now appears,
reads as follows, the stars indicating the illegible portions:
"Antto. Lusero * * querque ante * * resco por aqu * * que el
derech * * por quanto * * familia y no * * ante V. SSa. * * so de
tierra * * en la Mesa de Cochiti donde estubieron retirados los
indios que se sublebaron para en el sembrar i cabra [labrar] en
dicho pedaso de tierra, dies anegas de trigo y dos de mais, y para
apastar mi ganado menor y Cavallada, y luida dicha tierra por la
parte del norte con el Pueblo Viejo de Cochiti, y por el oriente
con el Rio del Norte,
Page 167 U. S. 535
y por el Sur con tierras de las naturales dicho pue * * el
poniente con * * de Xemes con sus * * salidas abreva * * y
Servidumbres * * lo en perjuisio de * * de serbir V. SSa. de * *
ersed en nombre * * gestad por todo * * lico provea y mau * * do
que resivire * * rsed y juro por Dios Nuestro Se nor no ser de
malicia en lo necessario &a."
"Antto. Lucero"
The description of the land prayed for, which is the only part
of the petition material to this case, may be represented in
translation as follows:
"* * cel of land * * on (or at) the mesa of Cochiti where the
Indians who rebelled retreated, to sow thereon, and to cultivate on
said piece of land about ten fanegas of wheat and two of corn, and
to pasture my sheep and horse herd, and the said land is bounded on
the north by the old pueblo of Cochiti, and on the east by the Del
Norte river, and on the south by the lands of the natives of said
pue * * the west with * * of Jemez."
The grant, which appears immediately at the foot of the
petition, is also partly mutilated, but so far as it is legible and
can be translated, reads as follows:
"Village of Santa Fe,
August 2, 1728"
"This petition was presented by the party therein before his
excellency the governor and captain general of this Kingdom of New
Mexico."
"And the same being examined by his excellency, he treated the
same as presented and regis * * the land which the party asks, and
for which purpose he ordered * * ed that the chief alcalde of San
Felipe Santo Dom * * and Cochiti to proceed and examine said piece
of land by * * tation of the natives of said pueblos and others who
may live near, and there being any opposition to suspend, and there
being no impediment, and it being without prejudice to a third
party having a better right, the grant is made to him in the name
of his majesty, and he will be placed in royal and personal
possession
Page 167 U. S. 536
under the boundaries he refers to and of which having acquired
it * * "
This grant was probably signed by Bustament, and countersigned
by Antonio de Cruciaga, his secretary of state and war, although
these signatures do not now appear upon the original documents.
These documents are produced by the petitioners themselves, and
not, as usual, by a
testimonio or copy certified by the
proper officer.
As this grant refers to the land demanded in the petition for a
description, it throws no light upon the controversy in this case,
which turns not upon the validity of the grant, which is admitted,
but upon the identification of the calls or objects described as
boundaries, and therefore of the extent of the grant. As the grant
is bounded upon the east by the Rio del Norte or Rio Grande, of
course, there can be no uncertainty so far as to what is meant. As
the boundary upon the south is "by the lands of the natives of said
pue * * " -- meaning, evidently, thereby the pueblo of Cochiti --
and as this boundary appears to have been fixed and located by the
survey and patent to the Indians of this pueblo, by and under the
authority of the United States, no question is made with regard to
its correctness. The difficulties arise from the uncertainty as to
what is meant by the "Old Pueblo of Cochiti," described as the
northern boundary, and by the western boundary, described as "the
west with * * of Xemes" (Jemez).
The chief contention is over the northern boundary, owing to the
fact that there are two pueblos of Cochiti, one of which is seven
miles to the northeast of the other. The court below adopted the
southernmost one, known as the "Pueblo Viejo de Cochiti," as
answering the call in the grant of the "Old Pueblo of Cochiti,"
while the petitioners insist upon locating the north boundary by
what was, and still is, known as the "Pueblo Viejo," which is
supposed to have long antedated the other.
There are other calls, however, which tend to identify the
description with greater certainty:
Page 167 U. S. 537
1. The land is described as
"en la Mesa de Cochiti donde
estubieron retirados los indios que se sublebaron," in or upon
(or perhaps at, the difference being immaterial) the mesa
(tableland) of Cochiti, where the Indians who rebelled
retreated.
The location of this mesa is perfectly well settled. It lies
upon the southerly side of the
canon, or
canyada
(water course) of Cochiti, its northerly side forming the wall of
the
canon. It is evident, however, that the grant was not
intended to be limited to the mesa itself (notwithstanding the use
of the word "en"), which appears to have been comparatively small,
as the grant extended easterly across the Cochiti
canon,
the Canyada Jose Sanchez, and the lower waters of the Canyada de en
Medio, some five miles to the Rio Grande, and included about 5,000
acres of land, a considerable part of which seems to have been
arable.
Upon this mesa is a ruined pueblo commonly known as the "Pueblo
de Cochiti." Whether it was also known as the "Old Pueblo of
Cochiti" is one of the points in dispute here. It seems that the
Spanish, who settled this territory as far to the north as Santa Fe
during the middle and latter half of the sixteenth century, were,
about 1680, driven out by the Indians, whom they had reduced to a
virtual condition of slavery, and that, for about thirteen years,
the latter continued to control the country, defeating successive
Spanish expeditions until, in 1693, they were reconquered by Diego
de Vargas, and the Cochiti Indians, or a portion of them, took
refuge in the pueblo upon the mesa of Cochiti. We do not understand
this fact to be questioned, and it goes a long way towards
identifying this pueblo as the "Old Pueblo of Cochiti," mentioned
in the same description as the northern boundary of the grant. It
does not seem very probable that, after having mentioned the mesa
of Cochita, upon which it is admitted there was a pueblo, and then
proceeding to bound the land on the north by the "Old Pueblo of
Cochiti," Lucero intended a wholly different pueblo, situated seven
miles to the northeast of the other.
The very fact that such prominence was given to the mesa
Page 167 U. S. 538
of Cochiti indicates that it was mentioned for some purpose, the
subsequent description of the grant by boundaries being complete in
itself. Upon the theory of the claimants, it is difficult to see
why this mesa was mentioned at all. Upon that theory it was not
named as a boundary, since both the north and west boundaries are
claimed to be miles from this pueblo, and as a local object it
seemed to have been no more prominent or worthy of mention than
several other pueblos within the alleged limits of the grant.
Assuming that Lucero stood there, and from that spot made a mental
image of what the extent of his claim should be, does not aid the
matter, since it is quite as likely that he intended to claim the
comparatively fertile land between himself and the Rio Grande as
the vast territory now claimed by his heirs and assigns. In view of
the fact that there was a pueblo upon this mesa -- a pueblo still
known as the "Pueblo of Cochiti" -- the natural inference is that
he desired to connect this mesa with the "Old Pueblo of Cochiti,"
named as one of the boundaries.
2. That Lucero did not intend to claim an extensive grant is
also evident from his express purpose, "
para en el sembrar i
cabra (labrar) en dicho pedaso de tierra dies anegas (fanegas) de
trigo y dos de mais, y para apastar mi ganado menor y
Cavallada" -- "to sow thereon, and to cultivate on said piece
of land ten
fanegas of wheat and two of corn, and to
pasture my stock of small cattle and horses." The words "
ganado
menor" are used to indicate not a small herd of cattle, but a
herd of small cattle (sheep), as distinguished from a "
ganado
mayor," or herd of large cattle. The word "
fanega" is
used both as a dry measure and as a measure of land, and in its
former sense, it appears to have been somewhat uncertain in
quantity, varying from one and one-half to two and one-half
bushels; or, to speak more accurately, about one hundredweight of
grain. As a measure of land, it appears to have been even more
uncertain, indicating not the quantity of land necessary to raise a
fanega of wheat, but that quantity which requires a
fanega of wheat to sow it. The
fanega of wheat
differs again from the
fanega of corn. It is agreed,
however, in this case that the twelve
fanegas called for
would
Page 167 U. S. 539
be about thirty-three acres. Under any method of determining
what a
fanega was intended to represent, it would seem
that 5,000 acres of land, if any of it were cultivable, would be
amply sufficient, while the 104,000 acres claimed would be out of
all proportion to the calls of the grant. How much land would be
necessary to pasture his stock of sheep and horses would depend so
much upon the character of the land and of the size of his herd
that it throws no light whatever upon the intended limits of the
grant.
3. All these conjectures, however, are preliminary to and as
throwing light upon the more important question as to what is meant
by the "Pueblo Viejo de Cochiti," mentioned in the petition as the
northern boundary. Lucero apparently had been a soldier in the
Spanish army, had taken part in putting down the rebellion of the
Indians, and had a somewhat numerous family. Claimants' argument in
this connection is that by these words "Pueblo Viejo de Cochiti"
must be understood a pueblo about seven miles to the northeast of
the mesa of Cochiti, and commonly known as the "Pueblo Viejo," on
the "Potrero de las Vacas" -- the farm or mesa of the cows. It
appears that when the Cochiti Indians, after being defeated by the
Spaniards, retreated to the historical mesa of Cochiti in the
latter part of the seventeenth century, they built there the pueblo
which has now, after the lapse of upwards of two centuries, become
known as the "Old Pueblo of Cochiti," although at the time of the
grant it was not in reality an old pueblo, having been burned by
the Spaniards not much more than thirty years prior thereto. It is
possible, however, that Lucero did not refer to this particular
pueblo as the "Old Pueblo of Cochiti," since it appears from
Professor Bandelier's work upon Archaeological Investigations in
the Southwest (part 2, p. 178) that the oldest ruins on the mesa of
Cochiti are those of a prehistoric Queres pueblo, although the best
preserved are those of the pueblo built after the year 1683, when
the Indians retreated there, and abandoned April, 1694. In virtue
of these older ruins, the pueblo may well have acquired the name of
the "Old Pueblo of Cochiti" without reference to the later ruin. We
do not regard this as of any
Page 167 U. S. 540
decisive weight, however, as it does not take long for a
deserted village or house to become known as "the old house," etc.
It also appears that the Pueblo Viejo is of much greater antiquity
than that of Cochiti, and at the time of the grant was a
conspicuous object in Cochiti traditions, and so much venerated by
the Indians in that vicinity as to be resorted to for religious or
semi-religious purposes. This fact is the basis of the main
argument for the claimants.
We have, however, carefully considered the testimony upon this
point, and have come to the conclusion that, while the Pueblo Viejo
may have been much the older of the two, it was never commonly
known as the "Pueblo Viejo de Cochiti," and that, while the
southerly of the two pueblos was generally known as the "Pueblo de
Cochiti," it was also known as the "Pueblo Viejo de Cochiti."
4. The uncertainty regarding the western boundary arises from
the blank in the description "et poniente con * * de Xemes" -- "the
west with * * of Jemez." That a word is torn off is perfectly
obvious from an inspection of the original document. That this word
related to something connected with Jemez is equally evident. The
claimants insist that these words must be explained by the context,
the topography of the country, the customary adoption in royal
grants of prominent natural objects, or conspicuous artificial
objects, as landmarks, the significance of names used as
descriptive of well known places, and by the reasonable
probabilities of the case. As the boundaries of this grant, like
those of Spanish land grants generally, were fixed by such
landmarks, -- upon the east by a river, upon the north by a pueblo,
upon the south by the lands of another pueblo -- it is natural to
suppose that the western boundary was fixed, either by reference to
a river, a canyada, a pueblo, or a range of mountains (sierra),
also a most common boundary. As the Jemez River is far to the
westward of the sierra of that name, it is very improbable that
this was intended. There was also an ancient Indian village or
pueblo of that name, whose inhabitants did not belong to the Queres
stock from which the Cochiti Indians sprang, and were in no respect
affiliated with them. The
Page 167 U. S. 541
languages of the two communities were different. They could not
even converse together, except in Spanish. The two villages of the
two nations were quite distinct. Each inhabited, cultivated,
pastured, and hunted over a district into which the other tribe did
not intrude unless by favor, and the Jemez country, with its fields
and mesas, streams and mountains, lay far to the west of the
Cochiti country. The village occupied by the Indians of the Jemez
was called the "Pueblo de Jemez." The river that flowed about its
lands was called the "Rio de Jemez," and its canyon the "Canyon of
Jemez," while the mountains adjacent were called the "Sierra de
Jemez." As this sierra was the first natural object to which the
name of "Jemez" was affixed, lying to the westward of the mesa of
Cochiti, we think the grant must have referred to that sierra, or,
if there were more than one range of mountains known as the "Sierra
de Jemez," then to the one most easterly. Perhaps this will not
extend the grant beyond the mountains immediately west of the
mesa.
There was also some evidence tending to show that the west
boundary was reputed to be the sierra, and some to the effect that
the stock of Lucero and his descendants grazed as far west as the
Jemez mountains. It must be confessed that this evidence is not
entitled to great weight, but, such as it is, it supports the
inference that one would naturally derive from an inspection of
this mutilated grant.
So, also, in the admitted reproduction or restoration of these
documents made by the alcalde De Baca in 1817, to which reference
will hereafter be made more in detail, the words "la Sierra" are
imported before "de Jemez." If this restoration of the mutilated
documents be of no other value, it tends at least to show the
opinion of an intelligent native of that region, familiar with the
topography of the country and the customary boundaries of Spanish
and Mexican grants, as to what this grant probably intended to
refer to as the westward boundary. If Lucero had intended to fix
the western limit at the pueblo or mesa of Cochiti, it is probable
that he would have used the word "Cochiti," instead of the word
"Jemez," which, as above stated, indicated clearly that
Page 167 U. S. 542
some natural object, to which the word "Jemez" was fixed, must
have been within his contemplation. The very fact that he made the
pueblo the northern boundary without also making it the western
boundary, indicates that another boundary to the westward was
intended. We are therefore of opinion that the court below erred in
locating the western boundary by the pueblo of Cochiti, and that it
should be extended westward to the nearest sierra or other natural
object that bears the name of Jemez.
Certain proceedings, subsequent to the grant, are also called to
our attention as tending to throw light upon the identification of
the "Old Pueblo de Cochiti."
5. The first of these in the order of time is an appeal made by
the alcalde mayor, Don Bartolome Fernandez, "in favor of the
republic of the Indians of the pueblo of Cochiti against some
residents called Romero, who claimed to settle the place called El
Capulin," which was probably in the Canyon Capulin, in the
northeasterly portion of the tract claimed in this proceeding.
In this appeal, Fernandez brought to the notice of the governor
that at the place commonly called "El Capulin," contiguous to the
pueblo of Cochiti, the Romeros were settled, and, in view of the
fact that, during all the time he had lived in this country, he had
never seen said tract settled, which was the pasture land of the
horses and stock of the said pueblo, and other residents of the
Kingdom, and not knowing of any grant's having been made to
authorize such settlement, he informed the governor and captain
general of the fact.
In answer to this, an order, in the nature of an order
nisi, seems to have been made, directing the alcalde to
eject the settlers unless they showed cause to the contrary. The
document is a very peculiar one, but this seems to have been its
purport.
Romero thereupon appeared before the governor by petition,
stating that he had been notified by Fernandez to vacate the
Capulin, and that he had obeyed immediately, but that he had not
removed his property, as he had held it for five years and six
months without objection until this year (1765), when
Page 167 U. S. 543
it was made known that he had purchased parts which did not
belong to him by law, from parties claiming under a grant to one
Andres Montoya, which instrument he presented with due formality,
stating that he saw no reason for his being interfered with or
deprived of his purchase. Thereupon the governor and captain
general of the Kingdom, under date of April 18, 1765, ordered that
the previous order be carried into effect and that the parties be
again notified not to settle, by building or cultivation at the
said place of Capulin,
"they being permitted only to have their stock on the said place
of the Capulin as crown land, as the other residents do, but
without prejudice to the pueblos and republics of the Indians of
Cochiti and San Ildefonso,"
which the alcalde mayor of the city of Santa Fe was directed to
notify to them, and which he accordingly did, and made return
thereof.
Attached to these papers is the grant to Andres Montoya, which
covers a tract between the orchards or gardens of Cochiti on the
south, and on the north by the orchards of San Ildefonso. This
grant, which was made in 1739, seems to have been subsequently
cancelled as fraudulent, because there did not appear to be any
citation of the adjoining landholders.
The litigation seems to have been terminated by an order of
April 25, 1767, made by Don Fermin de Mendinueta, governor and
captain general, reciting the nullity of the grant to Montoya, and
that the attempted settlement by Romero was in 1965, twenty-six
years after the grant was made (1739); declaring the grant to
Montoya to be of no value; that the only rights which Romero had
were those enjoyed and used by the natives of Cochiti and the
adjoining residents, as crown lands, and ordering that neither
Romero nor anybody else should settle or have ownership in the said
tract of the Capulin, and
"that it shall be held and esteemed as crown land for the common
benefit of all those who may desire to pasture their stock on the
same, without excluding the said Romero."
Of course, these proceedings cannot be considered in the light
of
res adjudicata, since neither the Spanish crown, the
predecessor in title of the United States, nor Lucero were
Page 167 U. S. 544
parties thereto. The only weight that can be given to them is
that of a general reputation that the lands upon the Canyada de
Capulin were considered and treated as crown lands, over which the
Cochiti Indians and other residents of the neighborhood had some
indefinite rights of pasturage. As these lands were within the
asserted grant to Lucero, it is somewhat singular that he made no
resistance to the claim of Romero, put forward no title in himself,
and left the litigation to be carried on by the natives and other
residents of that neighborhood, who were allowed to pasture upon
these lands as crown lands.
6. Similar considerations apply to the adjudication of 1785,
which arose from an alleged intrusion by one Antonio Gallego upon
lands in the Canyada de en Medio. The proceedings opened by a
petition by the heirs of Lucero to the chief alcalde and war
captain, Antonio de Armenta, claiming to be residents of the
jurisdiction of the Canyada de Cochiti, and heirs to the place, and
complaining that their lieutenant was seeking to possess for
himself for the purposes of pasturing
"the few cavalry we have for the royal service of his majesty,
whom may God preserve, and for better protection concerning which
we declare, sir, that that favor of our lieutenant is very
grievous,"
the petition terminating with a prayer that the matter be
examined into and their rights protected.
Upon this petition, the alcalde made an order reciting the
injury done to the heirs of Lucero in desiring that the Canyada de
en Medio remain reserved for cavalry upon the petition of Gallego,
and finding that the petitioners were, in all respects, the legal
heirs to the tract.
The proceedings in this litigation undoubtedly form a strong
item of testimony in favor of the claimants' theory of this case,
and we are by no means disposed to deny their weight. At the same
time, they are by no means conclusive. The crown was not a party to
nor represented in the litigation. There was no attempt to
adjudicate that the northern boundary was the Pueblo Viejo, or that
the Luceros had a good title to the canyada against anyone but
Gallego, who seems to have been little better than a trespasser,
and put forward no title to
Page 167 U. S. 545
the land himself. Indeed, it would appear from the order of the
alcalde that such right as he had was "by favor only" to "raise a
few sheep, . . . without having any title or document which might
accredit its being his."
7. The next item of testimony upon which the claimants rely is
that of the so-called "
testimonio por concuerda," which
purports to have been made in 1817 by Juan Antonio Cabesa de Baca,
chief alcalde of the jurisdiction of Cochiti, and is certified to
be
"a true, faithful, and legal copy of the documents of grant to
which they refer, of which, as they are incomplete and very badly
treated [
truncos y muy mal tratados], this copy has been
made with great labor before the witnesses of my attendance, who
saw it made, corrected, and amended from the original
instruments."
The first paper is a restored petition of Lucero at the foot of
which is a grant by the governor and captain general, Bustamente,
countersigned by his Secretary of State and war. Following this is
the certificate of Andres Montoya, chief alcalde, to the effect
that, on August 6, 1728, he gave to Lucero possession of the lands
"expressed and mentioned in this grant," and, having registered the
same, took Lucero by the hand and
"conducted him over said land in sign of lawful possession, and
there being no person whatever who, under a better right, might
claim the same, I deemed it good."
The court below was of opinion that this proceeding was wholly
void, that it was in the nature of a case against the crown, that
the effect of it would be to create evidence to deprive the crown
of title to its land, and that alcaldes had no jurisdiction of that
kind. We do not find it necessary, however, to determine this
question, since, so far as we can judge, this
testimonio,
or official copy, does not differ in any essential particular from
the original, except so far as making more definite the westerly
boundary of the grant at Sierra de Jemez. That a grant was actually
made to Lucero is not disputed. So far as the erasures and
mutilations of the original are supplied in the restored grant,
they are immaterial except as connected with the description, which
is an exact reproduction of the description in the original grant,
except as to the
Page 167 U. S. 546
western boundary, which is declared to be the Sierra de Jemez;
and, as we have already found that this is what was intended by the
parties, this alleged copy is only a confirmation of the opinion we
had already reached from an inspection of the original grant, and
from the probabilities of the case. We do not regard this copy as
affecting at all the conclusions to be reached from the other
evidence in the case.
8. The claimants also rely upon a long continued adverse
possession of this land, maintained for nearly 170 years from the
date of the grant, and nearly eighty years from the date of the
testimonio issued by the alcalde mayor De Baca. Had it been shown
that this possession was complete, adverse, and undisputed during
the whole life of this grant, such possession would probably be
regarded as complete evidence of title. Nor are we disposed to deny
that the fact that the Luceros and their descendants pastured stock
upon these lands is evidence of such possession, but in order to
make it of any particular weight, it should be shown to have been
exclusive, and that no other person pastured or had the same right
to pasture upon these lands. The proceedings in the case, first
above mentioned, of the intrusion by the Romeros indicate the lands
to have been held in common and to have been subject to pasturage
by the Indians and other residents of that neighborhood. Under such
circumstances, it should be made to appear that the rights of
Lucero and his descendants were exclusive in this particular. In
addition to this, however, it is a fact, so notorious that we may
take judicial notice of it, that mere pasturage upon these western
lands is very slight evidence of possession. The court below was of
opinion that "from a practical standpoint, the grazing of stock in
this country has no value as evidence of practical location." In
view of the fact that all or nearly all of this testimony
respecting possession is given by witnesses who are descended from
Lucero, or connected with his family, or are interested in the
litigation, and the possession relied upon is not shown to have
been exclusive or inconsistent with the use of this vast tract as a
pasturage common to all the dwellers in that neighborhood, we think
the court did not err in refusing to give it weight as evidence of
title.
Page 167 U. S. 547
Other ancient documents offered by the claimants may be laid out
of consideration. They consist principally of conveyances, to some
of which members of the Lucero family were parties, but the
descriptions of the lands are too uncertain to afford any definite
information upon the extent of the grant, or even of what was
claimed by Lucero in that connection.
Upon the whole, we have come to the conclusion that the
claimants have not made out their case by a fair preponderance of
evidence, or such weight of testimony as is necessary to establish
their title to this large tract of land. We should have reached
this conclusion without out hesitation had it not been for the
proceedings connected with the ouster of Antonio Gallego from the
Canyada de en Medio in 1785, which is really the only item of
testimony at all inconsistent with the government's theory of the
case; but, after all, this is but evidence of a general reputation,
or of a judicial ruling in a case to which the crown was not a
party, and it is not at all improbable that the alcalde may have
considered Lucero's title to be good as against one who had no
title at all beyond a mere permit to pasture a few horses, or raise
a few sheep thereon, "without having any title or document which
might accredit its being his." It does not follow that, if the
government itself had attacked the grant or the extent of it, his
ruling upon that point would not have been different. In fact, the
ruling in the prior case between the Indians of the pueblo and the
Romeros is about as strong evidence that the lands at El Capulin,
also within the assumed limits of the grant, were crown lands, as
the judgment in this case was that the lands upon the Canyada de en
Medio belonged to the Luceros.
These judgments are really of little value, except as throwing
light upon the occupation, or attempted occupation, by Lucero of
that portion of the tract lying nearest to the Rio Grande, and of
the general reputation as to the extent of his grant. The chief
reliance must be upon the terms of the petition itself, and it is
fortunate that the most important part of this petition, namely the
description of the boundaries, has been best preserved. The only
real difficulty in its interpretation is the ambiguity arising from
the words "Pueblo
Page 167 U. S. 548
Viejo de Cochiti." The burden of proving the larger grant is
upon the claimants. So long as the description is reconcilable with
the smaller grant, and with a pueblo located upon the mesa of
Cochiti, the government is entitled to the benefit of that
construction. The location of that pueblo seven miles to the
northeast is supported by testimony too shadowy to be a safe basis
for a legal adjudication in favor of the claimants.
While we agree with the court below upon the main question
involved, the different view we have taken regarding the western
boundary requires that its decree be
Reversed, and the case remanded for further proceedings in
conformity with this opinion.
