Town of Tome Grant

by J. J. Bowden

Juan Barela and twenty-eight other residents of the Villa of Albuquerque petitioned the alcalde of that town on July 2, 1739 seeking permission to form a new settlement upon the sitio of land which originally had been granted to Tome Dominguez but subsequently revoked due to his failure to fulfill the conditions of settlement. The petitioners stated that they did not have sufficient land or water at Albuquerque and desired to form the new settlement in order to have a place to support their families and stock. Alcalde Juan Gonzales Bas advised the applicants that he did not have authority to grant their request and, therefore, had referred the matter to the Governor of New Mexico. Finding the request to be just and reasonable Governor Gaspar Domingo de Mendoza granted the petitioners the lands which they had requested subject to usual conditions of settlement required by law. The grant expressly provided that it was not being made to the grantees exclusively but was also to run in favor of anyone desiring to join them. At the same time, the governor ordered the alcalde of Albuquerque to place the grantees in possession of the premises, and, in order to avoid future difficulties among the owners, directed Bas to partition the land among the grantees so that each person would receive his proportionate share of the land. Bas met the grantees at the grant on July 30, 1739 and proceeded to place them in possession of the grant, which was described as being bounded:

On the north, by the point of the marsh at the hill called Tome Dominguez; on the east, by the main ridge called Sandia; on the south, by the place commonly called Tres Alamos; and on the west, by the Rio Grande.

Following the survey and delivery of possession of the grant, Ban proceeded to allocate an individual lot or tract of land to twenty of the original petitioners. These tracts wore large enough to permit the construction of a house, planting of a garden and the cultivation of a fanega of corn and two of wheat within their boundaries.[1] A copy of the proceedings pertinent to the issuance of the grant was duly filed in the Archives of New Mexico.[2]

On August 6, 1856 the inhabitants of the Town of Tome filed[3] their claim with the Surveyor General William Pelham for investigation and confirmation. Pelham compared the signatures on the expediente against the signatures of the granting officers on other documents contained in the Archives and found the title papers to be genuine. Based on this cursory investigation coupled with a finding that the petitioners and their ancestors had peaceful possession of the land for more than a century, Pelham recommended[4] the confirmation of the grant on September 2, 1856.

Congress confirmed the grant to the Town of Tome by the Act of December 22, 1858,[5] The grant was surveyed in September, 1860 by Deputy Surveyor John W. Garretson and was certified to contain 121,594.53 acres. A patent was issued to the Town of Tome for all of the lands described in Garretson’s survey on April 5, 1871.[6]

The nature of grants similar to the Town of Tome Grant worried lawyers in New Mexico for years. The question at issue is whether they are individual grants in favor of the original grantees or community grants under which all of the land embraced within their boundaries, except for the individual tracts which had been allotted to the settlers, is to be held in trust for the benefit of future settlers.

The Supreme Court of New Mexico held[7] that the only title which passed under the Town of Tome Grant was to the individual allotments and that title to the balance of the grant remained in the crown, subject to its use by the members of the community as a common pasturage. Therefore, when the area passed to the United States, title to the unallocated lands vested in the United States, which, in turn, conveyed the lands in question to the Town of Tome free of all claims of the original grantees. The case was appealed to the United States Supreme Court which affirmed that judgment.[8]

[1] H. R. Exec. Doc. No. 1, 34th Cong., 3d Sess., 479‑482 (1856).

[2] Archive No. 956 (Mss. Records of the A. N. M.).

[3] The Town of Tome Grant, No. 2 (Mss., Records of the S.G.N.M.).

[4] Ibid.

[5] An Act to Confirm the Land Claims of Certain Pueblos and Towns in the Territory of New Mexico, Chap. 5, 10 Stat. 374 (1859).

[6] The Town of Tome Grant, Mo. 2 (Mss., Records of the S.G.N.M.)

[7] Bond v. Unknown Heirs of Juan Barela, 16 N.M. 660; 120 P. 707 (1911).

[8] Bond v. Unknown Heirs of Juan Barela, 229 U. S. 488 (1912).

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