United States v. Algodones Land Co., 344.

• Citation: 52 F.2d 359
• Decision Date: 11 September 1931
• Docket Number: No. 344.,344.
• Parties: UNITED STATES v. ALGODONES LAND CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

52 F.2d 359 (1931)

UNITED STATES v. ALGODONES LAND CO. et al.

No. 344.

Circuit Court of Appeals, Tenth Circuit.

September 11, 1931.

George A. H. Fraser, Sp. Asst. to Atty. Gen.

Manuel A. Sanchez, of Santa Fé, N. M. (C. R. Brice, of Santa Fé, N. M., on the brief), for appellees Alfredo Montoya and wife.

Thos. J. Mabry, of Albuquerque, N. M., for appellee Manuel G. de Baca.

Summers Burkhart, of Albuquerque, N. M., for all other appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The United States, as guardian of the Indians of the pueblo of San Felipe, appeals from a decree denying its prayer to quiet title to 22 tracts of land. Since the appeal was taken, the decision of this court in United States v. Wooten, 40 F.(2d) 882, has become final and requires an affirmance as to eight of the tracts.¹ This court's decision in Pueblo de Taos v. Gusdorf, 50 F.(2d) 721, has been handed down since the argument of this appeal and requires a reversal as to claim No. 12, Manuel C. de Baca, the evidence being undisputed that the land was sold for taxes during the period of adverse possession. The remaining claims may be grouped.

The Santa Rosa de Cubero Grant.

Alfredo Montoya and others defend their title to 1,402.35 acres embraced in the Santa Rosa de Cubero grant of 1815, on two grounds, both of which were sustained by the trial court: (1) That the pueblo of San Felipe never had title to this tract; and (2) that they acquired title by adverse possession under section 4 of the Pueblo Lands Act of June 7, 1924 (43 Stat. 636 25 USCA § 331 note).

The question of whether the pueblo ever had title hinges upon the northern boundary of the grant made to the pueblo in 1689. The pueblo asserts that its northern boundary is the southern boundary of the grant to the pueblo of Santo Domingo. The claimants assert that the two boundaries were not coincident; that there lay between them a large tract, granted by Spain in 1815, and known as the Santa Rosa de Cubero grant. The pueblo claims that the Cubero grant of 1815 was void because it was superimposed upon the grant theretofore made to it.

The northern call of the San Felipe grant is "on the north the Bosque Grande large woods which is toward the east." This landmark is now incapable of identification. The south boundary of the Santo Domingo grant is the Loma Pelada, a bare bald hill. If it had been the intention that the two grants should adjoin, the natural thing to have done would have been either to have used a common landmark as the boundary of each, or, better still, for the later grant to have used as a call "the southern boundary of the lands heretofore granted to the Pueblo of Santo Domingo," or the converse. There is no common physical characteristic between a "large woods" and a "bare, bald hill"; that two dissimilar landmarks were used indicates that the boundaries were not coincident.

Strong support of the trial court's decree is found in ancient documents, the authenticity of which is not challenged. It appears that in 1815 the Spanish government was petitioned to grant to Fernandez and Quintana "the surplus of the two Pueblos of Santo Domingo and San Felipe, leaving them unharmed and without disturbing the boundaries of said Pueblos." The Spanish Governor referred the petition to the local Alcalde, with instructions to see that the grant, if made, should be "without prejudice to the measurements of the Pueblos of Santo Domingo and San Felipe, or other third person." The Alcalde measured the grants to both pueblos in the presence of the Governor and other Indians of San Felipe; he reported that the Indians gave their consent and that no opposition to the grant was offered by either pueblo. Thereupon the grant was made, the description being "the surplus of the patrimonial leagues of both Pueblos, and its boundaries are, on the north the league of Santo Domingo, on the south the league of San Felipe." The Spanish Governor approved the grant, and possession was delivered. It is clear that in 1815 neither the Spanish government nor the pueblo construed the boundaries of the two pueblos to be coincident, as it is not to be presumed that the government of Spain granted land that did not belong to it, nor that the pueblo would have consented thereto.

The land so granted in 1815 embraces the land in controversy. In 1898 an application was made to the Court of Private Land Claims to confirm the Santa Rosa de Cubero grant. The United States and the two pueblos were represented. After hearing all the testimony offered, the grant was confirmed, and two of its boundaries fixed as the north and south lines of the two pueblos. This decision has no binding effect, for several reasons, but, in dealing with obscure boundaries in ancient documents, courts must avail themselves of the evidence obtainable. Wigmore on Evidence, § 1580 et seq. The hearings were had before the Court of Private Land Claims thirty-three years ago — in another generation; the witnesses there testifying are in all probability dead; their testimony has been preserved, and we have examined it. In our opinion it supports the conclusion that the Cubero grant was not superimposed on the San Felipe grant. In 1914, the United States issued its patent covering the Cubero grant, the boundaries being identical with those fixed by the decree of the Court of Private Land Claims.

The trial court found that the claimants and their ancestors had been in notorious and exclusive possession of the lands in controversy since 1889, and had paid all the taxes thereon. Under the authorities hereafter cited, we are of the opinion that the evidence sustains such finding. The testimony as to possession and taxes offers, in addition, persuasive proof as to the disputed boundaries.

The appellant relies upon a patent issued by the United States to the pueblo of San Felipe in 1864, pursuant to the Act of Congress of December 22, 1858 (11 Stat. 374). Such patent recites that it "shall only be construed as a relinquishment of all title and claim of the United States to any of said lands and shall not affect any adverse valid rights should such exist." This patent is based upon a survey made in 1859, the surveyor's map and notes being incorporated in the patent. In making this survey, the surveyor should have undertaken to run the lines in accordance with the grant. But the northern boundary as described in the grant, "the Bosque Grande which is toward the east," was apparently disregarded. The surveyor started on the east line of the grant, ran south and then west; he then proceeded northerly along the west boundary and ran his lines until he intersected the south boundary of the Santo Domingo grant; he then ran southeasterly along the south boundary of the Santo Domingo grant for six miles, and then ran south to the point of beginning. The only mention of the Bosque Grande is with reference to the southeasterly six-mile call, where he says that "the last half mile is first rate river bottom land, cultivated and irrigated, known as the Bosque Grande." Nowhere is the Bosque Grande indicated as a boundary in the survey; nor is there evidence that the Bosque Grande of 1859 is the same woods referred to in 1689. Nor is there any evidence that any effort was made by the surveyor to ascertain and establish the boundary named in the grant; on the contrary, it appears that he ignored the description in the 1689 grant, and the existence of the 1815 grant, and undertook to establish a different boundary for the pueblo, to wit, the "south boundary of the Pueblo of Santo Domingo." Treating the survey as competent evidence as to the location of this obscure boundary, we are nevertheless persuaded that the more persuasive evidence is opposed, and that the trial court correctly held that the Cubero grant of 1815 was not superimposed upon the 1689 grant to the pueblo of San Felipe.

The appellant also relies upon a deed made in 1818 by one Quintana to the pueblo of San Felipe purporting to convey "a half ranch of untilled lands which ranch is between the leagues of the Pueblos of Santo Domingo and San Felipe," the half conveyed being that which the grantor was entitled to by inheritance from his deceased father, and which the Alcalde had decreed to him in 1816. There is no evidence that this deed was recorded, nor that it was delivered, nor that possession of the land was formally delivered under it, as was the then custom. It appears in this record because it was one of the exhibits in litigation commenced in 1819 by Fernandez, one of the co-owners of the Cubero grant, against Quintana, the other owner and the grantor in this deed. One of the complaints of Fernandez was that Quintana had sold part of the grant without the consent of Fernandez. A decree was entered in this action in 1820, and, notwithstanding that the deed in question was exhibited and in issue, it was held that: "As the right of Jose Alejandro Quintana results from the proceedings let it be declared for him in due form." In 1855 an instrument was executed by Fernandez, which appellant contends is confirmatory of the deed of 1818; that instrument is supposedly executed by an heir of Fernandez, and not Quintana; it refers to a conditional donation of 1815, and is of no assistance. There is no evidence that any possession followed either of these instruments, and we agree with the trial court that the evidence concerning them is too shadowy to serve as a muniment of title. The decree of the trial court as to...