Town of Cubero Grant

by J. J. Bowden

The inhabitants of the Town of Cubero petitioned[1] Surveyor General William Pelham on April 2, 1856 seeking the confirmation of the concession which had been granted and possession given to their ancestors, the founders of the town, by the Mexican government in or about the year 1834. The grant was made to the original grantees, who numbered about seventy heads of family, on condition that they purchase the interest of Francisco Baca, a Navajo Indian who was then living on the premises. The original grantees acquired Baca’s interest and established the Town of Cubero on the grant shortly thereafter and, from that time on, it was occupied continuously by the grantees or their descendants and assigns. The petitioners described the grant as being a tract of land bounded:

On the north, by the San Mateo Hill; on the east, by a long range of hills; on the south, by the stone mountains with crosses on them; and on the west, by the San Jose Hills.  

They alleged that the original grant papers had been lost or destroyed. In order to sustain their allegation that a grant had been made, they filed a Spanish document from the archives of Valencia County dated May 12, 1841 evidencing the settlement of a boundary dispute between the Town of Cubero and the Pueblo of Laguna and establishing their common boundary on top of the hills situated between the Towns of Cubero and Encinal.


Although the Town of Cubero had been in existence for more than twenty years at the time of the filing of the petition, the lack of any documentary evidence clearly establishing the issuance of a grant caused the Surveyor General’s office to defer action on the claim. This caused the inhabitants of the Town of Cubero no little concern, and prompted them to file the first suit in the Court of Private Land Claims. Juan Chaves and sixty-one other persons, each of whom was either an heir or legal representative of one of the original grantees, except Juan Antonio Duran, who was the only survivor of such grantees, instituted this suit[2] on November 30, 1891. It was claimed by the plaintiffs that in the year 1833 Governor Francisco Sarracino granted Juan Chaves and about sixty others the above described tract, which they estimated to contain about eleven square leagues of land. They asserted that the grant was perfect and unconditional, except, for the conditions prescribed by the Colonization Law. In an effort to account for their failure to file any documentary evidence of the concession, they alleged that the expediente had been amongst the Archives of New Mexico, but had been lost or destroyed, and the testimonio of the grant had been in the possession of Juan Chaves up to the time of his death, but subsequently had been either lost or destroyed. The government, in its answer, put in issue all of the allegations contained in the plaintiffs’ petition.


The case came up for trial on August 22, 1892 at which time the plaintiffs introduced a large amount of oral evidence by a number of witnesses for the purpose of proving the existence of a grant. The testimony of Jose Antonio Duran, the sole surviving original grantee, is typical. He testified: [3] 

That he was 92 years of age, that he was one of the settlers of the Town of Cubero in the year 1833, and had there resided ever since; that their title was a written title, made to them by Francisco Sarracino, the governor. He gave a description of the boundaries of the land and the names of some of the original settlers of 1833. He stated that Don Juan Chaves and Don Juan Garcia, as Commissioners, put them in possession …. He testified that, when Juan Chaves died, the title paper was missing, and that it was currently reported that one Vincente Margarito Hernandez, who had been his secretary, had carried off the testimonio or official copy of the grant; that since 1833 the settlers and their children had lived upon and cultivated the land. He further stated that, when they applied for the grant from the government, an Indian, named Francisco Baca, was on the land, and that it was made a condition that the Indian would abandon it.


They also introduced the document pertaining to the Cubero-Laguna boundary disputes, the petition filed in the Surveyor General’s office, and a number of deeds showing sales of parcels of land within the grant dated from 1841 to 1856. The claimants likewise proved, by quite a number of witnesses, that in about 1870 a considerable portion of the Archives of New Mexico had been sold as waste paper by the Territorial Librarian, and never recovered. William M. Tipton, who was in charge of the Spanish Archives in the Surveyor General’s office, testified that the books and. records in that office purporting to contain the registry of land grants made by the Spanish and Mexican governments, were in a disconnected, fragmentary form, and that one of the most important books, containing a record of grants made by the Spanish and Mexican governments, was missing and. presumed to have been stolen. He also stated that there was no index of the dates, lists of original expedientes or warrants of title to Spanish and Mexican grants. This evidence was adduced to sustain the allegation that governor had granted the premises to the original colonists, that possession had been delivered to them, and account for the loss of the expediente and testimonio. The government, in turn, asserted that there was no documentary evidence that a grant had been made and the claim could not he proven by parol evidence. The government cited the case United States v. Castro, 24 How. (65 U.S.) 346 (1860), support for its position. It argued that if the oral testimony of interested parties, unsupported by any written document; was sufficient to establish the existence of the grant, without any evidence that it had ever been a matter of record, then, in the language of Chief Justice Tawney in the above mentioned case, It would make the title to land dependent upon oral testimony, and consequently render them insecure and unstable, and expose the public to constant imposition and fraud. The government argued that the only strength the claim had was that the plaintiffs and their predecessors had been in possession of the property since 1833. In closing, it noted that until 1865 no claim was ever made under a Mexican grant, but the inhabitants of the town merely based their title to the land upon the deed from the Indian, Francisco Baca.


On September 26, 1892 the court entered a decree,[4] confirming the claim on the ground that title to the promises had been derived from the Republic of Mexico, and was complete and perfect at the date when the United States acquired sovereignty over New Mexico. The government appealed the decision to the United States Supreme Court, which by decision[5] dated November 11, 1895, held:

Not only was there evidence of the existence of original grant by the government of New Mexico and of the loss of the original records sufficient to justify the introduction of secondary evidence, but there is the weighty fact that for nearly sixty years the claimants and their ancestors have been in the undisturbed possession and enjoyment of this tract of land.

Continuing, the court stated that as a general rule a grant would be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years.[6]

The grant was surveyed in July, 1896 by Deputy Surveyor George W. Pradt for 16,490.94 acres, and was patented on August 27, 1900, notwithstanding the fact that it covered 10,138.40 acres within the Rancho de Paguate Grant, which had been patented to the Pueblo of Laguna in 1884, and 283.23 acres under the patented Pueblo of Acoma Grant.[7]


Suit[8] was brought by the Lagunans on February 17, 1910 in the District Court for Valencia County to quiet their title to the Rancho de Paguate Grant on the ground that the confirmation by Congress amounted to an adjudication by Congress of their title, which could not be disturbed by any court. It was also pointed out that Section 13(2) of the Act of March 3, 1891,[9] which created the Court of Private Land Claims, provided that “no claim shall be allowed that shall interfere with or overthrow any just and unextinguished Indian title or right, to any land or place.” By decision dated September 28, 1914, the court held that the Town of Cubero Grant was valid, and later was sustained[10] by the United States Supreme Court.


The conflicts between the pueblo grants and the Town of Cubero Grant were presented to the Pueblo Lands Board. In connection with the conflict with its Rancho de Paguate Grant, the Board not only upheld the previous decisions, but awarded the owners of the Town of Cubero Grant an additional 420.85 acres on the ground that the Pradt survey was in error.[11] However, in regard to its conflict with the Pueblo of Acoma Grant, the Board held that the Indians’ claim had not been extinguished. This finding was sustained in a suit filed by the government as guardian for the Acoma Indians in the Federal District Court for New Mexico, which, by decision dated May 14, 1931, extinguished the claim of the inhabitants of the Town of Cubero to the overlap.[12]

[1] The Town of Cubero Grant, No. F 26 (Mss., Records of the S.G.N.M.).

[2] Chaves v. United States, No. 1 (Mss., Records of the Ct. Pvt. L. Cl.).

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

[4] 1 Journal 54‑56 (Mss., Records of the Ct. Pvt. L. Cl.).

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

[6] This obiter dictum apparently was sustained by the United States Supreme Court, in Hayes v. United States, 175 U. S. 248 (1899), when it held that possession for six or seven years before the Treaty of Guadalupe Hidalgo of land by an alleged grantee, is not sufficient to constitute a title which can be confirmed under the Court of Private Land Claims Act, where a valid grant is not proved to have been made.

[7] The Town of Cubero Grant, No. F 26 (Mss., Records of the S.G.N.M.).

[8] Pueblo of Laguna v. Candelaria, No. 1693 (Mss., Records of the District Clerk’s Office, Los Lunas, New Mexico).

[9] Court of Private Land Claims Act, Chap. 539, Sec. 13(2), 26 Stat. 854 (1891).

[10] Pueblo of Laguna v. Candelaria, 257 U. S. 623 (1921) (mem.).

[11] The Pueblo of Laguna Grant (Mss., Records of the Pueblo Lands Board, General Services Administration, National Archives, Washington, D. C.).

[12] United States as Gdn. for the Indians of the Pueblo of Acoma V. Arvizo, No. 2070 (Mss., Records of the United States District Clerk’s Office, Los Lunas, New Mexico).


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