United States v. Chavez, 175 U.S. 509 (1899)

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United States v. Chavez

Nos. 88

, 89

Argued October 16-17, 1899
Decided December 18, 1899
175 U.S. 509

APPEAL FROM THE COURT

OF PRIVATE LAND CLAIMS

Syllabus

Upon a long and uninterrupted possession of lands in Mexico, beginning long prior to the transfer of the territory in which they are situated to the United States and continuing after that transfer, the law bases presumptions as sufficient for legal judgment in favor of the possessor in the absence of rebutting circumstances, which do not exist in this case.

To the land involved in these cases the appellees claimed a complete claims under section 8 of the act establishing the court to so adjudge and confirm it. After due hearing, the court did so adjudge, and entered a decree confirming the title to petitioners, from which decree the United States prosecuted this appeal.

The basis of the title to the southern portion of the tract (No. 38) is a grant made on the 5th day of November, 1716, to Captain Antonio Gutierrez by Captain Felix Martinez, the then Governor and Captain General of New Mexico. The appellees claim to derive from Gutierrez by conveyances and legal succession, and also claim a continuous possession in him, their predecessors in interest, and themselves, from the date of the grant to the present time.

The course and the conveyance of the title is exhibited by an abstract filed by the claimants in the lower court. It is as follows:

Abstract of Title.

The claimant is unable to present any direct conveyance from the original grantee or from his heirs with which he is in any way connected. He relies upon the papers contained in archive No. 178 in the office of the Surveyor General for New Mexico to show that the original grantee, Antonio Gutierrez, took possession of the said tract of land and afterwards transferred the same to Diego Padilla, and that said Diego Padilla conveyed said land to Diego Borrego, who in turn conveyed the same to Nicolas de Chavez, these conveyances being made in the years 1734 and 1736. Claimant files herewith copies and translations in triplicate of said archive No. 178.

Claimant avers that it appears from archive No. 371, in the office of the Surveyor General for New Mexico, that at some time prior to the year 1785, the tract claimed had become the property of Clemente Gutierrez, the said archive No. 371 is a record of proceedings as to the estate of the said Clemente Gutierrez, and claimant files herewith copies and translations in triplicate of so much thereof as shows the inventory of all the real estate belonging to said Clemente Gutierrez and the hijuela given to each of the heirs showing their respective shares of said real estate.

Claimant relies upon the following described deeds to connect him with the title of said Clemente Gutierrez and through him with the original title to the grant:

Deed of Jose Lorenzo de la Pena, for himself and his sister Mariana and his brother Jose Rafael de la Pena, to Francisco Xavier Chavez, dated September 20, 1818, for an undivided fifth of the Bosque de los Pinos, bounded on the north by the lands the pueblo of Isleta, on the south by the lands known as those of Los Lentes, on the east by the hills, and on the west by the Rio del Norte, a translation of which deed, made in the year 1855 by the official translator of the office of the Surveyor General for New Mexico, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith.

Deed from Francisco Sarracino, representing his mother, Maria Luisa Gutierrez, one of the children of Clemente Gutierrez, to Francisco Xavier Chavez, for an undivided interest in the ranch of the Bosque de los Pinos, bounded on the north by the league of the pueblo of Isleta, on the south by residents of Valencia, on the east the plain, and on the west the Rio del Norte, dated October 19, 1821, a translation of which deed, made in the year 1855 by the official translator of the office of the Surveyor General for New Mexico, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith.

A deed from Juan Nepomuceno Gutierrez and Apolonia Gutierrez to validate the sale made by their father, Lorenzo Gutierrez, of the portion to which he and Lorenzo Gutierrez were entitled in the Bosque de los Pinos, dated December 27, 1839, a translation of which deed, made by the official translator of the office of the Surveyor General of New Mexico in the year 1855, is now on file in this court in case No. 64, and triplicate copies thereof are filed herewith.

Claimant avers that the originals of the three deeds above described were filed in the office of the surveyor general in 1855, and that they appear to have been withdrawn from that office by J. Bonifacio Chavez on the ___ day of _____, 187_, and cannot now be found, although the official translations made at that time have been preserved.

The said Francisco Xavier Chavez, to whom the said deeds were made, was the grandfather of this claimant, and claimant has inherited from his said grandfather an interest in the property conveyed by said deeds.

A fuller statement of the documentary evidence may be omitted except of the original grant. It was produced from the Spanish archives, and its translation is as follows:

Plaintiff’s Exhibit A Archive 315

[Translation]

1716 (1) No. 449

To the Governor and Captain General:

I, Captain Antonio Gutierrez, a resident of the Town of Albuquerque and a native of this Kingdom, appear before you in due legal form, and I state that, being very much in need of lands on which to plant in order to support my family, and also to the end that my sheep may have room to scatter out, and there being an uncultivated and unoccupied tract of lands below Ysleta, apparently at a distance of two leagues, which formerly was held by Cristobal de Tapia, of which tract will you be pleased to make me a grant in the name of His Majesty in the same manner as it was held by said Cristobal de Tapia, and, if you be pleased to grant it to me, will you also order that the real possession be given me, designating to me boundaries and landmarks, in order that no prejudice may result to me in its possession?

Wherefore I ask and pray, with due humility, that you will be pleased to make me the grant that I ask for in the name of His Majesty, as one who represents his royal person, and I swear in the name of God our Lord, and by the sign of the Holy Cross, that this my petition is not in bad faith, and whatsoever is necessary, etc.

Antonio Gutierrez [Scroll]

Note -- I ask and pray that the boundaries belonging to said tract be designated to me -- on the north an arroyo with some cottonwood trees that comes down from the hills, on the south the pueblo of San Clemente, on the east the Del Norte River, and on the west the hills of the Puerco River, and I swear in due legal form that my petition is not in bad faith, and whatever is necessary.

Antonio Gutierrez [Scroll]

Presentation

At the town on Santa Fe on the fifth day of the month of November, in the year one thousand seven hundred and sixteen, before me, Captain Felix Martinez, Governor and Captain General of this Kingdom and provinces of New Mexico and Castellan of its forces and garrisons for His Majesty, it was presented by the party therein named.

Decree and Grant

And it having been examined by me, I treated as properly presented in accordance with law, and, in view of the fact that it is His Majesty’s will that his lands should be settled and fortified, in his royal name I make to the petitioner the grant that he asks for, as he describes it and as Cristobal de Tapia formerly enjoyed it, without prejudice to a third party who may have a better right, and I command Captain Baltazar Romero that as soon as he be notified with this my decree, he shall place the petitioner in real possession, and this shall serve him as a sufficient formal title for his protection, and when these proceedings shall have been had he will transmit this grant and possession to my civil and military secretary, in order to make him a certified copy thereof, and that this original petition remain in the said archives, and in witness thereof I sign it with my civil and military secretary.

Felix Martinez [Scroll]

Before me,

Miguel Tenorio de Alba [Scroll]

Civil and Military Secretary

Archive No. 178 consisted of three instruments. Two of them were respectively entitled an "instrument of donation," and of "real sale," and were respectively executed on the 7th and 11th of January, 1734, one Don Diego Borrego being grantee in both. The third was a conveyance from Borrego to Don Nicolas Chavez. It is only necessary to quote portions of the first two instruments. From the first, as follows:

In this villa of San Felipe de Albuquerque, on the seventh day of January of the year one thousand seven hundred and thirty-four, before me, Captain Juan Gonzales Bas, alcalde, mayor and war captain of the said town and its jurisdiction, personally appeared Diego Padilla, whom I certify I know, who, in the presence of two witnesses, said that he gave and did give freely to Don Diego Borrego, to-wit, a piece of land which, as will hereinafter more fully appear, he had and possesses by donation, which, in favor of the said Padilla, was made by Captain Antonio Gutierres, and its boundaries are: on the north, lands of Joaquin Sedillo; on the east, the Rio Grande; on the south, land of the said Diego Padilla, there serving as a landmark on the said boundary the midway line between the two houses which the said Padilla built near the boundary line of the said donation, and on the west with the boundary line called for in the title papers of the whole tract which the said Padilla has, and as I say of the said lands, he makes gift and donation and conveys his own right, domicil, and seign’ory, the said Diego Padilla, with the consent of his wife and children, to the said Don Diego Borrego, without any consideration other than his own will. . . .

From the second, the following recital,

personally appeared before me [the same officer as in the other instrument] Antonio Sedillo, the legitimate son of Joaquin Sedillo, and forced heir of the aforesaid.

And further, that

he gave and did give in real sale a tract of land down the river and below the pueblo of Iselecta. . . . And as I say, the said Antonio Sedillo gives and did give in real sale the said tract, after consultation and with the consent of his mother and brothers and sisters, who gave him authority for the same, because the said Joaquin died in debt, and in order to procure the amount which he owed, and the said Antonio Sedillo acknowledges that the said tract was acquired by his said father in part by grant in the name of His Majesty and in part acquired and held under real sale, as shown by five instruments which he delivered, and the boundaries of the said tract are: on the north, the line of the league of the Iseleta pueblo; on the east the Rio Grande; on the south a twin alamo, called by some the Culebra, and on the west the ridge of the Puerco River, and he says that the said tract he gives to Don Diego Borrego for the price and sum of two hundred dollars. . . .

It will be observed that there are only direct conveyances from the original grantee, Antonio Gutierrez, to Don Diego Borrego, who received the title in 1734. Borrego conveyed to Chavez in 1736. From the latter no transfer is shown to anyone, but that the title passed from him in some way to Clemente Gutierrez prior to 1785 is claimed to be established by what is called the

proceedings and inventory, division, and partition of the property which he left at his death among his wife and five children, concluded in the year 1785. (Archive No. 371).

The description in the inventory is as follows:

Idem. A ranch below the boundary of the pueblo Isleta, commonly called San Clemente, Barrancas, and Las Pinos, of which they have possession, although there is no title deed of its boundaries, estimated at $1,200.

The claimants trace title directly to the widow and children of Clemente Gutierrez.

The pueblo of Isleta presented a petition in the court below in which it adopted the allegations of the original petition and joined in the prayer for the confirmation of the validity of the title to the heirs and legal representatives of Antonio Gutierrez.

At the close of the testimony, counsel for claimant stated, counsel for the government not objecting, that

it is admitted by the United States to be a fact that the pueblo of Isleta has had open and notorious possession and use of lands on the west side of the Rio Grande along between the boundary of the pueblo and the lands of the Los Lentes as far back as the memory of the oldest man living within the pueblo can extend, and that such possession and use have been claimed to be under a purchase from the heirs of Clemente Gutierrez, of which some documentary evidence has been presented in the paper executed by Lorenzo Gutierrez, dated May 3, 1808, and that said paper, which is marked "Plaintiff’s Exhibit G," and also Plaintiff’s Exhibits H and I, come from the custody and control of the officers of said pueblo, who have had them as far back as memory can extend.

Exhibit G, referred to, is as follows:

[Translation]

Don Lorenzo Gutierres, captain of militia, commandant in the field, alcalde of second election of the Town of Albuquerque, its jurisdiction and frontier, etc., etc.

Whereas the principal men of the pueblo of San Agustin de la Isleta have come before me asking for a deed of conveyance for the lands which, from the boundary of the said pueblo to that of Los Lentes, from south to north, were sold to the said pueblo by my predecessor, Don Mariano de la Pena, from the estate of my mother, Dona Josefa Polonia Baca, of which I am the administrator, of which sale the documentary evidence is in the possession of the alcalde of first election of this said jurisdiction, Don Manuel de Artega, from whom, he being seriously ill, it cannot be obtained until he gets better or dies, and it being probable that it is deposited in the archives under his charge, in order to avoid the repeated petitions of the said men, and knowing that the purchase was really made, I give them the present, which I sign for their security, signing it in order that it may so duly appear, with two assisting witnesses, in this place of Parjarito, on the third day of the month of May of the year one thousand eight hundred and eight.

Lorenzo Gutierres [Rubric]

Assisting witness: Agustin de la Pena [Rubric]

Assisting witness: Manl. Ruvi [Rubric]

The appellees also presented to the court of private land claims a petition for the confirmation of grant alleged to have been made

by the proper authorities of the government of Spain to one Joaquin Sedillo, which land lies immediately south of the lands of the Indian pueblo of Isleta, and was bounded on the north by the line of the league of said pueblo, on the east by the Rio Grande, on the south by a twin alamo, called by some the alamo de la Calebra, and on the west by the cefa of the Rio Puerco.

This is the northern portion of the tract contained in the decree of confirmation.

It was further alleged

that the original grant papers evidencing the said grant have been lost or destroyed, and cannot now be produced. The fact of the existence of said grant is, however, shown by papers which constitute a portion of the archive 178 in the office of the Surveyor General for New Mexico, copies and translations whereof are filed herewith in duplicate.

The matter of the petition constitutes case No. 39 on the docket of this Court, which, though separately appealed, has been submitted with case No. 38. The lands in each being contiguous -- the north boundary in one being the south boundary of the other, and having common claimants and possession, and the title in each being supported in part by the same evidence -- the Court of Private Land Claims consolidated them and included their confirmation in the same decree.

The petition alleged on information and belief, as to the southern boundary, as the petition in 38 alleged as to the northern boundary of the land therein described, that it

has been completely destroyed and its location cannot now be identified with certainty, and it is probable that no tradition of its location now exists for the reason that the said tract of land and the one immediately south thereof had become united in ownership in the hands of one person as early as the year 1734, as will fully appear by reference to the said archive 178, hereinbefore mentioned.

The archives referred to and the documentary evidence are the same as in No. 38, except there is no grant.

The oral evidence of possession was given by the claimant, Francisco Chavez. He testified that he became personally acquainted with the tract of land commonly known as Bosque de los Pinos, in Valencia County, New Mexico (the tract confirmed to him), about 1839, and it was then in the possession of a relation of his grandmother. And from the records, he knew his grandfather died in 1829, and from what he had been told by the family, his grandfather, before the latter’s death, "possessed it, farmed it, and kept cattle and sheep upon it." He further testified, since he has known it, his father had possession, then his mother, and after her death the heirs, and the possession had never "in any way been disturbed or encroached upon by other people." The boundaries of the Bosque de los Pinos he gave as follows:

On the north, by the Isleta Indian pueblo lands; on the east, by the old river bed; a stone marks the northeast boundary, and on the south by the Town of Peralta; on the west, by the present river.

The river referred to is the Rio Grande del Norte, which at the time of the original grants was their eastern boundary, but which some time subsequently to their date changed its channel. The land between the old and new channels is denominated in the evidence and in the decree of the court as "Bosque de los Pinos," and was confirmed to Francisco Chavez. All the rest of the tract was confirmed to the pueblo of Isleta.

The following sketch, which was introduced in connection with the testimony of Chavez, shows the relation of the grants, the location of some of the natural objects referred to, and the change in the river bed: