Doņa Ana Bend Colony Grant

by J. J. Bowden

The Do
ña Ana Bend Colony and its land grant has played a leading role in the history of the Mesilla Valley of New Mexico. Doña Ana, the initial settlement on the grant and the oldest permanent settlement in the valley was founded in 1843, upon the ancient Doña Ana paraje.[1] After its establishment, Doña Ana afforded the only protection for travelers passing over that dangerous stretch of the Camino Real lying between El Paso del Norte and Socorro, New Mexico. It undoubtedly took great courage for the original colonists to move to that isolated and unprotected settlement located in the heart of the hostile Indian Country. However, through their sacrifices, a nucleus was formed which ultimately led to the settlement and development of the entire valley.

 

As early as 1822, vacant land suitable for farming in the vicinity of El Paso del Norte had become scarce. It also had become apparent to the city officials that in order to support its ever‑increasing population the rich bottom lands in the Mesilla Valley would have to be opened for cultivation. John Heath’s thwarted scheme to establish a colony at Bracito stimulated interest in the development of that area. Realizing that the lands surrounding the Doña Ana paraje were ideally suited for agricultural purposes, Jose Maria Costales, a resident of El Paso del Norte, consulted with the Prefect of El Paso del Norte, Cayantano Justiniani, concerning the possibilities of his obtaining a grant at that site. The Prefect advised Costales that he did not have authority to make a grant to him individually but that if he could interest at least one hundred other men in joining him in the formation of a new colony, he could give them a community grant covering the lands in the Doña Ana Bend.

 

On September 18, 1839, Costales and one hundred fifteen other citizens of El Paso del Norte formally petitioned Jose Ygnacio Ranquillo, the Prefect of El Paso del Norte, requesting him to grant to them the lands situated on the east bank of the Rio Grande and lying within the Doña Ana Bend for colonization purposes. The petition was referred by Ranquillo to the Governor of the State of Chihuahua, J. Maria Yrigoyen, on October 18, 1839. In his accompanying report to the Governor, he stated that the lands which had been requested were fertile and subject to cultivation by irrigation, the proposed settlement would be beneficial to the general welfare of the State, and he knew of no reason why the application should be denied. Governor Yrigoyen, in turn, forwarded the petition to the Departmental Assembly for its approval. On December 5, 1839, the Departmental Assembly recommended the granting of the concession to the petitioners, subject to the provisions of the laws pertaining to colonization. However, no action appears to have been taken by Governor Yrigoyen upon the Departmental Assembly’s recommendation.

 

The same applicants submitted a new petition seeking a grant covering the same land to Jose Morales, Prefect of El Paso del Norte, on July 3, 1840. In their petition they stated that they direly needed the lands which they had requested because they had been idle and landless since the river had destroyed their farms in 1828. They concluded their petition by pointing out that the proposed new settlement would promote industry, communication, and tend to serve as a bulwark against the hostile Indians. This petition was likewise transmitted by the Prefect to the Governor of Chihuahua, Francisco Garcia Conde for his further handling and action. In his report to the Governor, Morales recommended the issuance of the grant on the ground that it would tend to alleviate the hardships and miseries of the landless applicants. After considering the proposal, Conde, with the concurrence of the Departmental Assembly, granted the lands on July 8, 1840, to Costales and his associates, subject to the terms and provisions of a ‘set of regulations, which were to be drafted, governing the colonization and distribution of the granted land. On the same day, Conde instructed the director of the Geographical Bureau of the. State of Chihuahua to prepare the necessary regulations. On July 31, 1840, Jose Rodrigo Garcia promulgated a minute set of regulations governing the formation and management of the Doña Ana Bend Colony. The Governor, on August 5, 1840, ordered the Prefect of El Paso del Norte to proceed with the establishment of the new colony and the distribution of individual tracts to the colonists in accordance with the Regulations of July 31, 1840. At the same time, Conde informed the Supreme Government that he had made a Colonization Grant to Costales and his followers.

 

Upon receipt of the Governor’s decision, Morales issued public notice of his plans to proceed with the establishment of the Doña Ana Bend Colony. On the day appointed for the colonists to move to the grant, they advised the Prefect that they would be unable to proceed with the project at that time due to their extreme poverty, the unusual hostility of the Indians and other just circumstances. Therefore, they requested that the date for their migration to the grant be extended to February 1, 1843. The Prefect felt the request was reasonable and granted the extension.

 

On January 26, 1843, thirty‑three of the original applicants notified Morales that they were willing and able to proceed with the formation of the colony. The Prefect appointed one of the grantees, Bernabe Montoya, as his agent to supervise the move and the establishment of the colony. Morales also issued a set of special instructions governing the construction of the community irrigation system. This small group of colonists promptly migrated to the Doña Ana Bend and commenced the construction of the acequia madre.

 

For various reasons, a number of the colonists who finally settled on the grant lost interest in the enterprise. One by one they began leaving the grant until on April 16, 1843, only fourteen colonists were left. In an effort to avoid the complete failure of the colony, the remaining grantees requested the Governor of Chihuahua to station a small detachment of soldiers on the grant and furnish each colonist with arms and ammunition in order to protect themselves from the savages. They also requested that ten men be sent from each district of the State in order to assist them in the completion of the irrigation system, that they be permitted to cultivate the lands they had already cleared without prejudicing their right to select other lands in the future as their individual farm tracts, and that they be exempt from military service and taxes. In response to this urgent request a squad of seven men and eleven muskets were rushed to Doña Ana to defend the settlement against the hostile Indians, who frequently terrorized the community. At the same time, the Governor advised the remaining grantees that they would be exempt from military service and could cultivate any land within the boundaries of the grant until it had been officially distributed according to the Regulations of July 31, 1840, but he had no authority to exempt them from taxation or require workmen from the other districts to assist them in the construction of their private irrigation project. There is no question but that these prompt relief measures saved the colony from being completely abandoned during the first year following its creation.[2]

 

Living conditions at the Doña Ana Bend Colony during its first year were extremely primitive. On one of his occasional visits to the settlement, General Mauricio Ugarte was met by only four of the colonists. When he inquired as to the whereabouts of the others, he was advised that they were hiding because they were completely without wearing apparel. Ugarte promptly outfitted the entire colony with military uniforms and gave them a horse and a mule, which for some time were the only domestic animals at the settlement. Living quarters consisted of a number of small adobe huts and brush jacals. The digging of the irrigation canals and clearing of the land was slow and tedious since all work had to be done with crude wooden spades and plows. Progress was further slowed as a result of necessarily having to use one‑half of the entire town’s population as sentinels to protect the workers from surprise attacks from the Indians. All provisions for the new colony had to be packed in from El Paso del Norte. A party consisting of a minimum of six men was necessary to make this tedious excursion with travel being done usually at night in order to minimize the risk of an Indian ambush.[3] A bumper crop coupled with the successful negotiation of‑a temporary peace treaty with the Mescalero Indians by General Ugarte encouraged many of the original grantees and a number of new settlers to move to the colony during the latter part of 1843.

 

On January 9, 1844, the colonists petitioned the Prefect of El Paso del Norte, Antonio Rey, requesting a distribution of the lands which they were entitled to under the Regulations of July 31, 1840. In response to this petition Prefect Rey personally went to the grant on January 19, 1844, and caused a survey of its boundaries to be made. The survey commenced:

 

At the head of the Doña Ana Acequia and ran thence down the East bank of the Rio Grande to the head of the Bracito Acequia; thence East to a point one league East of the foothills; thence North to a point one league East of the foothills and due East of the head of the Doña Ana Acequia; and thence West to the point of beginning.

 

After Rey had completed surveying the grant, he took a census of the colony in preparation for the distribution of the individual farm tracts to the settlers. The census showed that the population of the colony had increased from 14 to 261 inhabitants in less than one year. It also showed that there were 47 families and 22 single men on the grant who were eligible to receive individual allotments of land. Next, the Prefect laid out 47 caballerias of land for the married men and 22 smaller tracts for the single men. The 14 settlers who had continuously lived on the grant were given preferential right in the choice of their tracts. The balance were awarded by 1st. Following the allotment of the agricultural tracts, a townsite was laid out on the grant and residential lots were awarded to the 69 qualified colonists. The Prefect placed each of the colonists in legal possession of his land on January 24, 1844, but no title papers were issued at that time. Rey concluded his visit by appointing Pablo Melendrez to the office of justice of the Peace and Jose Maria Costales as alternate justice. Upon returning to El Paso del Norte, Rey made a written report to the Governor of Chihuahua. [4]

 

Being anxious to perfect the title to their individual tracts, the colonists requested Guadalupe Miranda, Prefect of El Paso del Norte, to give them testimonios evidencing their ownership of their land. On January 22, 1846, Miranda authorized Justice Melendrez to issue the necessary muniments of title. Acting upon this authorization, Melendrez issued title papers to each of the original allottees. He continued to distribute and grant land to all settlers who moved to the grant prior to the date of the signing of the Treaty of Guadalupe Hidalgo.[5]

 

The inhabitants of the Doña Ana Bend Colony petitioned the Surveyor General, James K. Proudfit, on January 23, 1874, seeking an investigation of their claim. Proudfit, after receiving oral and documentary evidence in support of the claim, wrote an opinion dated March 31, 1874, in which he stated that the records showed that the colony had been established by the lawful authorities of the Republic of Mexico; the colonists or their successors were in peaceful possession of the land and had never been disturbed in their possession except by hostile Indians; and he believed their claim had been legally perfected.

 

In conclusion, he recommended the confirmation of the grant.[6]  A preliminary survey of the grant was made under the direction of the Surveyor General in March, 1878, by John T. Elkins and Robert Marmon. Their survey disclosed that the grant contained 29,323.57 acres.[7]

 

The claimants’ petition for the recognition of the Doña Ana Bend Colony Grant was pending in Congress when the Court of Private Land Claims was created. Numa Reymond, John D. Barncastle, Josefa Barncastle, and Manuel Baregas, as owners of certain interests in the grant, filed suit in the Court of Private Land Claims against the United States on July 26, 1892, for the confirmation of the Doña Ana Bend Colony Grant.[8]

 

At the trial, the plaintiffs introduced a copy of the grant papers together with a transcript of the proceedings before the Surveyor General. They also introduced oral testimony which established the boundaries of the grant and substituted the allegation that the claimants had held peaceful and continuous possession of the grant ever since its issuance. The government acknowledged the genuineness of the grant papers, but opposed the confirmation of the grant on the grounds that the Governor and Departmental Assembly had no authority to make a valid concession, it pointed out that prior to 1835, Mexico had contracted a large national debt, which it was having difficulties repaying. On April 4, 1837,[9] the Mexican congress passed an act providing for the refunding of the debt through the sale of the public domain. To further se­cure the refunded indebtedness, an act was passed on April 12, 1837,[10] which mortgaged one hundred million acres of public lands in California, Chihuahua, New Mexico, Texas and Sonora. The Government contended that the Act of April 4, 1837, expressly repealed the National Colonization Act of August 18, 1824,[11] and the Regulations of November 21, 1828;[12] and, therefore, a gratuitous colonization grant made after that date was void. The plaintiffs answered this contention by arguing that the Act of April 4, 1837, applied only to the lands owned by the National Government which were actually mortgaged by the Act of April 12, 1837. In view of the fact that there was no evidence that the lands in question were owned by the National Government or had been mortgaged under the Act of April 12, 1837, the plaintiffs argued that it could reasonably be presumed that the lands in question belonged to the State of Chihuahua and were subject to colonization under the State’s Colonization Act of May 26, 1825.[13]

  

In the alternative, the Government argued that assuming the grant authorities had the power to make a gratuitous colonization grant, they had only granted a small tract of farm land and a residential lot to each individual settler, and that the fee in all the remaining unallotted land located within the boundaries of the tract, which they had designated[14]  for colonization, was retained by the Government of Mexico. The Government also asserted that only the tracts which had been awarded by Prefect Antonio Rey on January 22, 1844, by virtue of the Governor’s express orders should be confirmed, because the regulations did not authorize a Justice of the Peace to grant land to settlers. The plaintiffs answered the contention by arguing that the grant was a colony grant made for the benefit of all its inhabitants, and that on July 31, 1840, the sovereign had conveyed all its title to the lands embraced within its boundaries to the original and any future settlers. They contended that all of the subsequent distribution of land by the justice of the Peace was merely a petitioning of the land which had previously been owned by the colony, among its inhabitants.

  

The Court of Private Land Claims in its majority opinion dated March 25, 1896, held that the National Colonization Laws of August 18, 1824, and State of Chihuahua’s Colonization Law of May 26, 1825, were repealed only insofar as they pertained to the public lands which were mortgaged by the Act of April 12, 1837, and that there was no evidence indicating that the lands covered by the Dona Ana Bend Colony Grant had been mortgaged. The Court further held that the Governor of Chihuahua, with the consent and approval of the Departmental Assembly, had authority to make a valid colonization grant. The Court noted that the Governor, the Departmental Assembly, the Geographical Board and the Prefect were all involved in the making of this grant. The Court stated that it could reasonably be presumed that these public officials knew the law, and had properly discharged their duties. The Court further asserted that the validity of the grant was supported by the fact that the colony, which was well known and whose boundaries were well defined, had held peaceful uninterrupted possession of the land from the time of its inception up and ever since the change of sovereignty. Continuing, the Court held that the grant had been made for the benefit of the original settlers and all future colonists who might join the colony. The majority of the Court concluded its opinion by confirming title to the Doña Ana Bend Colony Grant to all bona fide residents living upon the grant on the date of the signing of the Treaty of Guadalupe Hidalgo.[15]  In a Dis­senting Opinion, Justice William N. Murray stated that he believed that each of the arguments which had been presented by the Government against the confirmation of the grant was well founded.[16]

 

In his report on the case to the Attorney General, the Government’s attorney recommended that the case be appealed to the Supreme Court of the United States despite the strong equities in favor of the plaintiffs. He called the Attorney General’s attention to the fact that under the views entertained by the Government and sustained by one member of the Court, the Doña Ana Bend Colony Grant was not made by lawful authority. Due to the fact that the case involved many new issues and interpreted several recently discovered Mexican statutes concerning the authority of Mexican officials to issue land grants after April 4, 1837, he felt that it would be advisable to have the case reviewed by the Supreme Court.[17]

 

Acting upon this recommendation, the Government appealed the Court of Private Land Claim’s decision to the United States Supreme Court. However, shortly after the Government had perfected its appeal in the case, the Government’s attorney reversed his original recommendation and advised the Attorney General that as a result of the Supreme Court’s decision in the Chaves Case,[18] he was satisfied that the long, continuous, peaceful occupation and development of the grant lands by its numerous claimants would prompt the court to over‑rule his purely technical objection on the grounds that it would be presumed that the granting authorities had the power to issue the concession, or at least hold that the Government was estopped to deny such a lack of authority by reason of its laches. Continuing, he advised his superiors that in the event the grant was finally rejected, that the claimants could possibly obtain title to their holdings under the Public Land Laws, but that they might suffer undue hardships if unscrupulous speculators jumped their claims. In conclusion, Reynolds recommended that the appeal be dismissed because he was satisfied that no peculiar interests of the United States would be subserved by the further prosecution of the claim.[19] The Government dismissed its 20 appeal on March 15, 1897.[20]

 

After the Government dismissed its appeal the Commissioner of the General Land Office ordered that the grant be officially surveyed in accordance with Article 10 of the Act of March 3, 1891. Such a survey was made on March 8, 1901, by Jay Turley. Turley’s survey disclosed that the 21 grant contained 35,399.017 acres of land.[21]

 

By patent dated February 8, 1907, the United States conveyed, subject to the reservation of gold, silver, and quicksilver mines and minerals, all its title in the following described lands in Doña Ana County, New Mexico, to the Doña Ana Bend Colony, its successors and assigns, to‑wit:

Commencing at a point on the east bank of the Rio Grande River, where the original settlers of said Grant took from the river the water for the Doña Ana acequia, being the same point at which the mouths of the Las Cruces and Mesilla acequias were afterwards located; it being the same point fixed by the Government of the U. S. Government survey as the northwest corner of said grant; then following the east bank of the Rio Grande, as that river ran in the year 1844, in a southerly direction about 13 miles to a point on the east bank of said Rio Grande at a place called high banks, said point being the head or mouth of an acequia known as the acequia of the Bracito Grant (said Grant sometimes called the Hugh Stephenson Grant) and also being the southwest corner of the said Doña Ana Bend Colony Grant as fixed by the United States Government Survey, including all the lands lying between the said Rio Grande and the foothills on the east banks of said river, which are between the old head of said acequia of Doña Ana, Las Cruces, and Mesilla, and the said high banks and head of said Bracito acequia, also a strip of land one league in width lying east of a line drawn along the foothills which lie to the east of said strip of land bordering on the river, which said last mentioned strip of land one league in width s granted to said colonists for pastoral purposes.[22]

 

On March 18, 1897, the New Mexico Legislature passed an act which authorized the claimants of an interest in a Spanish or Mexican Colony Grant to form a corporation to represent their interest, Each colony corporation had the power to sue or to be sued in the corporate name, and to distribute, sell, convey or otherwise dispose of the commonly owned lands. Colony corporations were managed by a Board of Trustees.[23] Such a corporation was necessary to clear the land titles of the individual owners of the lands embraced within the Doña Ana Bend Colony Grant after it was patented to the Doña Ana Bend Colony. The Doña Ana Bend Colony Grant was incorporated in accordance with the Act of 1897, and on February 18, 1907, Isidoro Armijo Secretary of the Board of Trustees of the Doña Ana Bend Colony Grant, received and signed for the patent to the grant.[24]

Though the lands of the grant have all long since passed into the hands of individual owners, the Doña Ana Bend Colony Grant Corporation is still in existence. It is joined as a necessary party to quiet title suits involving lands within the grant. It also occasionally issues a quit claim deed to the owner of lands within the grant in the event original title papers have not been recorded and have been lost or destroyed.

 

 

 


[1] The Doña Ana paraje was one of the earliest natural landmarks of Southern New Mexico. It was located in the Ancon de Doña Ana about fifty miles north of El Paso del Norte. Perhaps the earliest reference to this campsite is Governor Oterman’s notation that he camped there on February 4, 1682, following his unsuccessful expedition into New Mexico to crush the Pueblo Revolt. 1 Coan, History of New Mexico 211 (1925).

 

[2] S. Exec. Doc. No. 43, 43d Cong., 1st Sess., 43‑73 (1874).

 

[3] McFie, A History of the Mesilla Valley (unpublished thesis in New Mexico A & M College), 24‑25.

 

[4] S. Exec. Doc. No. 43, 43d Cong., 1st Sess., 74-78 (1874).

 

[5] The Doña Ana Bend Colony Grant, No. 85 (Mss., Records of the S.G.N.M.). P.M. Thompson, who had acquired the allotments which had originally been allotted to Gregorio Dabolos, petitioned Surveyor General Alexander P. Wilbar on December 4 1860, seeking the confirmation of his interest in the grant. Since his claim obviously depended upon the validity of the Dona Ana Bend Colony Grant no action was taken thereon. The Gregorio Dabolos Grant No. F‑92 (Mss., Records of the S.G.N.M.).

 

[6] Ibid.

 

[7] Ibid.

 

[8] Reymond v. United States, No. 24 (Mss., Records of the Ct. Pvt. L. Cl.).

 

[9] Reynolds, Spanish and Mexican Land Laws,222 (1895).

 

[10] Ibid., 223.

 

[11] Ibid.,121.

 

[12] Ibid., 141.

 

[13] Ibid., 132.

 

[14] This contention was later sustained by the United States Supreme Court in United States v. Sandoval, 167 U.S. 278 (1897).

 

[15] 3 Journal 31‑33 (Mss., Records of the Ct. Pvt. L. Cl.).

 

[16] Ibid., 33‑35.

 

[17] Report of the United States Attorney dated December 9, 3896, in the Case of Numa Reymond v. United States, (Mss., Records of the General Services Administration, Archives, Washington, D.C.), Record Group 60, Year File 9865-92.

 

[18] United States v. Chaves, 159 U.S. 452 (1895).

 

[19] Supplemental Report of the United States Attorney in Case of Numa Reymond v United States (Mss., Records of the General Services Administration, National Archives, Washington, D.C.), Record Group 60, Year File 9865‑92.

 

[20] United States v. Reymond, 166 U.S. 72 (1897). For some unknown reason the United States did not raise the issue in this case that the Dona Ana Bend Colony Grant was invalid due to the fact that the Grant had been issued after the passage of the Texas Boundary Act of December 19, 1836, and therefore the lands covered by the grant were within the Republic of Texas. Thus, the granting officials had no jurisdiction over such lands. For a detailed discussion of this interesting question, see Judge Federici’s dissenting opinion in Cartwright v. Public Service Company of New Mexico, 66 N.M. 64, 343 P. 2d 654 (1959).

 

[21] The Dona Ana Bend Colony Grant, No. 85 (Mss. Records of the S.G.N.M.).

 

 

[22] 30 Deed Records 55 (Mss., Records of the County Clerk’s Office, Las Cruces, New Mexico).

 

[23] Acts of the Legislature of the Territory of New Mexico 111-121 (1897).

 

 

[24] The Dona Ana Bend Colony Grant, No 85 (Mss., Records of the S.G.N.M.).

 



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