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by J. J. Bowden
Antonio Sandoval, a resident of Albuquerque and one of the most prominent and wealthy men in New Mexico, petitioned Governor Manuel Armijo on December 5, 1845, asking for a grant covering a tract of vacant land containing the famous Estancia Valley salt lakes. He described the tract as being bounded as follows:
On the north, by a line one league north of the Berrendo Spring; on the east, by the Serritos del Pedernal; on the south, by a line one league south of Salt Lakes; and on the west, by waters of the Mesteias.
Sandoval stated that he needed the grant as a pasturage for his extensive herds and required Armijo to give him the property in consideration of his more than thirty years of distinguished faithful military and civil service he had rendered in New Mexico without compensation of any kind, and also in repayment for the substantial loans he had made to the government from time to time. Armijo contacted Jose Serafin Ramirez, Comptroller and Acting Treasurer of New Mexico, in an effort to verify Sandoval’s statement. Ramirez delivered a certificate to Armijo on the following day in which he certified that his records revealed that Sandoval had in fact served as a civil and military officer for a period of some forty years and the government owed him a large sum of money on account of unpaid salaries and loans.
On December 7, 1845, Armijo issued a decree in which he granted the requested lands to Sandoval in the name of the Supreme Government, as a reward for the valuable services be had rendered, as payment for the salaries totaling 1500 Pesos, which he had not been paid during the six years he had served as the Prefect for the Central District, and as repayment for the loans totaling 9,000 pesos which he had made to the government. The grant also provided that the lands were to be free and exempt from all taxes and tribute. Thereupon, under the direction of the governor and in conformity with the laws. Usages and customs of Mexico, the Alcalde of Real del Oro, Jose Baca y Ortiz, went to the grant in the company of his two attending witnesses. Upon his arrival at the grant on December 15, 1845, Baca proceeded to survey and mark the boundaries of the grant in accordance with the description set forth in Sandoval’s petition. After he completed his survey, Baca placed Sandoval, through his agent, Juan Antonio Aragon, in legal possession of the premises. Baca concluded the proceedings by admonishing Sandoval to maintain a force of men with good arms upon the grant in order to protect its inhabitants from the incursions of the Indians.
Sandoval entered upon, occupied and improved the grant. He also maintained an armed force adequate to defend the grant from the date possession was delivered to him until December 15, 1848, when he conveyed it to his nephew, Gervaclo Nolan, by gift deed. Nolan presented his claim and title papers to Surveyor General William Pelharn for investigation on July 12, 1855. For some unknown reason, Pelham failed to act upon the grant prior to Nolan’s death in 1858. Sometime prior to January 23, 1861, Nolan’s widow and children filed an amended petition requesting the confirmation of the grant to them. Testimony was taken in 1861 relative to the allegations contained in the amended petition, but no final action was had in the case until Surveyor General James K. Proudfit issued an opinion dated January 4, 1873, in which he stated that he believed the claimant’s title papers were genuine beyond all doubt. He also pointed out that it was a matter of history and common notoriety that Sandoval was a man of great activity, wealth and influence and that the Mexican government owed him, for many years, large sums of money which it was either unable or unwilling to pay. Therefore, he held that the claimants’ title was perfect and recommended the grant’s confirmation to the legal representatives of Gervacio Nolan, deceased.
A preliminary survey of the grant was made in 1878, by Deputy Surveyor S. C. McElroy for 415,056.56 acres. Nolan’s widow and heirs became disillusioned as a result of Congress’ continuous failure to confirm their claim and finally, on September 23, 1880, sold the grant to Joe Parker Whitney.
In an effort to bring matters to a head, Whitney brought an action of ejectment against Robert McAfee, who was attempting to perfect a homestead entry upon a tract of land lying within the grant. The sole issue in the case was whether the lands in controversy were public lands of the United States or had been segregated therefrom and excluded from the operation of the homestead laws as a result of Proudfit’s approval of the grant under Section 8 of the Act of July 22, 1854. This provision clothed the Surveyor General of New Mexico with certain judicial powers and duties with reference to Mexican and Spanish land grants. The New Mexico Supreme Court, in an opinion dated July 30, 1883, held that the New Mexico Courts had no authority to review, reverse or modify any decision of the Surveyor General as to the validity or invalidity of any such grant made in a case regularly before him since that power and authority rested solely with congress. Therefore, the legal effect of a decision by the Surveyor General finding a grant to be valid was to segregate the lands covered thereby from the public domain. Thus, the lands in question were excepted and reserved from the operation of the homestead laws pending final action on the claim by Congress. Therefore, it ordered McAfee’s ejection as a mere trespasser without any color of right. Once the grant was safe from being invaded by homesteaders, Whitney was willing to relax and await Congress’ pleasure in the matter.
Since Congress had not acted upon the claim, it was one of the grants which was re‑examined by Surveyor General George W. Julian under instructions from the Commissioner of the General Land Office. In a Supplemental Opinion dated July 21, 1886, Julian also found the title papers to be genuine, but contended that, since there was no documentary evidence of the grant in the Archives of New Mexico, the claimants were not entitled to a confirmation of the grant under the doctrine of the Peralta Case. Continuing, he stated that its validity was very questionable from another point of view. He pointed out that on June 21, 1860, the United States had confirmed the Bosque del Apache Grant, which had been granted to Sandoval on November 28, 1845, in consideration of personal services and financial assistance rendered to the Mexican government, and such grant had been surveyed and patented for 60,117.39 acres. Next, he called attention to the fact that under the restrictions of section 12 of the Colonization Law of August 18, 1824, the maximum quantity grantable to one person was eleven square leagues or 48,824.48 acres. Next, he called Congress’ attention to the fact that the United States Supreme Court had held that this provision could not be evaded by making separate grants. Since no evidence had been produced showing that either Sandoval or Nolan had ever inhabited, cultivated or exercised any acts of ownership over the premises, he did not believe that a legal or equitable title had been established. Therefore, he recommended the rejection of the claim by Congress.
Commissioner of the General Land Office, William A. J, Sparks, reviewed Julian’s Supplemental Opinion on December 17, 1886, and raised another obstacle against the confirmation of the claim. He noted that by Act approved July 1, 1870, Congress had confirmed the Gervacio Nolan Grant, which was located in Colorado, to the extent of eleven square leagues to these same claimants and that said Act expressly provided that such confirmation was to be taken as full satisfaction of all further claims or demands against the United States. Since the confirmation of the Gervacio Nolan Grant had satisfied all demands against the United States, this claim should be rejected.
Julian’s adverse Supplemental Report undoubtedly caused Whitney no little concern, since it tended to place the Estancia Grant on the same footing as the Bartolome Baca Grant, a conflicting Spanish grant made in 1819, which previously had been recommended for rejection by Surveyor General Henry M. Atkinson, but never acted upon by Congress. Therefore, Whitney, in order to test the validity of Julian’s Supplemental Report, filed an ejection suit against Jesus Maria Chaves y Garcia, a claimant under the Bartolome Baca Grant, to remove him from a choice tract of land which he was occupying within the boundaries of the Estancia Grant. The New Mexico Supreme Court, in a decision dated January 28, 1888, modified its decision in the McAfee Case and refused to eject Chaves on the ground that decisions by the Surveyor General are not binding upon the courts of New Mexico until confirmed by Congress. Continuing, the court stated:
Congress had, as we think, two purposes in view in the passage of the Act. One was to ascertain the number and extent of the grants made either by Spain or Mexico under any law, usage or custom, of either country, in which any person had a subsisting, interest at the date of the conclusion of the treaty of Guadalupe Hidalgo in 1848, in order to separate the areas so claimed under said grants from the public domain and to withhold the same from donation, sale or settlement, until Congress could examine the bona fides of such claims as were presented by the Surveyor General, and to determine finally, as between the United States and the claimant, what grants were or were not within the protection and sanction of the treaty; the other was to aid Congress in reaching an intelligent and just decision on these important questions involving, as they do, the private fortunes of many worthy citizens on the one hand, and the public faith and honor of the government, pledged by treaty, on the other; and for that purpose, the Surveyor General was commissioned to ascertain every important fact necessary to a just and fair interpretation of the terms of the treaty, and to lay his report before Congress for its action. Congress reserved the right to ultimately confirm or reject any grant reported .... The lands covered by the grant were withheld from settlement or disposition, not until the Surveyor General had acted upon them and rendered a final decision, but until Congress confirmed or rejected them... Until Congress confirms his reports, they have no legal effect whatsoever. His findings cannot operate upon the status of title. His decisions, standing alone, do not operate to confirm a previously granted estate, nor does his rejections diminish or destroy one previously granted. His decisions amount to no more than the expression of his opinions. …
In conclusion, the court held that it had a “limited jurisdiction to the extent of protecting the possession from intrusion by wrongdoers or persons having no superior title”. 
By this time, Congress was in no mood to take any action one way or the other upon the numerous Spanish and Mexican private land claims that were then pending before it. Congress was still smarting from the criticism to which it had been subjected as a result of its confirmation of, among others, the Maxwell, Sangre de Cristo, and Baca Float Grants, But its inaction also was causing problems. The homesteaders were complaining that millions of acres were being illegally reserved from appropriation under invalid grants. Therefore, Congress finally realized that a proper juridical tribunal for the settlement of these questions was necessary. On the last day of the second session of the Fifty‑second Congress, an act was approved creating the Court of Private Land Claims.
Whitney filed suit against the United States in the Court of Private Land Claims on March 1, 1893, seeking the confirmation of the grant. He alleged that the grant was perfect and complete, having been made to Sandoval by the Supreme Executive of Mexico through his trusted minister and agent, Governor Armijo, who, in making the concession, was not restricted by any prescribed rules or limitations. Whitney contended that the Supreme Executive had expressly authorized Armijo to make grants of public land in New Mexico and especially the Estancia Grant, but this authorization had been lost or destroyed. In an effort to account for the loss of the order authorized in the grant, he asserted that when the United States conquered New Mexico, the Archives of New Mexico were turned over to General Stephen Watts Kearny and, at that time, the order by the Supreme Executive to Armijo was among such papers. These archives were carefully preserved at Santa Fe for many years without waste, loss or exploitation; however, due to certain alterations made in the Governors Palace, a portion of the archives, including the Order; was thrown loosely and carelessly into an unfurnished room but suffered no immediate injury or waste. In 1870, Governor William A. Pile, desiring to use the room as an apartment, instructed the Territorial Librarian, Ira M. Bond, to remove the “rubbish” from the room, Whereupon, Bond moved the papers to an exposed outbuilding which was wholly unfit for their preservation. Shortly thereafter, Pile gave a portion of the papers to the prison for such uses as it desired. Next he ordered Bond to sell the balance of papers under threat of personally burning them if they were not “taken out of the way”. As a result of this threat, Bond sold the residue to a number of shopkeepers, who used them as wrapping paper. As a consequence of this wholesale destruction of the archives by a federal official, a meeting, composed of the leading citizens of Santa Fe, was held on April 16, 1870, to consider the outrage. Due to prompt action by a committee appointed at this meeting, a small portion of the papers were recovered, but the Supreme Executive’s Order was not among them. The government, in its amended answer, raised the several objections to the confirmation of the grant which previously had been noted by Julian and Sparks. In addition, it adamantly argued that there could be no presumption that the Supreme Executive had authorized or directed Armijo to make the Estancia Grant and there was no evidence that anyone had actually seen such an order. The government also called attention to the portion of Bond’s testimony wherein he had stated that previous to the disposal of any portion of the archives, the papers in question had frequently been combed and all papers relating to land matters had been removed to the Surveyor General’s office for preservation. Therefore, it was extremely doubtful if “any really important papers relating to grants of land had in fact been destroyed”. It also pointed out that there was no evidence that the grant had ever been presented to or approved by the Departmental Assembly,
When the case came up for trial on December 14, 1898, Whitney introduced his title papers and oral evidence tracing the history of the destruction of the archives. He argued that the grant was not subject to the acreage limitations contained in the colonization law of August 18, 1824, for that law had been repealed in 1836, when New Mexico was changed from a territory to a department. Thereafter, Armijo, as the alter ego of the Supreme Executive, could grant any quantity of land that he might see fit. The government, on the other hand, contended that there was no power to make a gratuitous grant in New Mexico after the adoption of the law of April 4, 1837, which provided for the selling of the public domain to repay the funded national debt. It also presented convincing arguments that if the Colonization Law of August 18, 1824 was applicable, then the governor previously had exhausted his power to grant land to Sandoval and that the confirmation of the Gervacio Nolan Grant had satisfied all the government’s obligations to Nolan’s heirs, who at that time were the owners of the claim to the Estancia Grant
The government’s several defenses against the confirmation were so persuasive that the court had a great deal of difficulty in deciding upon the grounds on which to base its decision to reject the grant. Four separate opinions were written in December, 1898, Three were in favor of the rejection of the grant and the fourth was for its confirmation. Justice Henry C. Sluss, in an opinion which was concurred in by Justice Thomas C. Fuller, held that the case was to be decided under the Colonization Law of August 16, 1824, which in his judgment had not been totally repealed by the Act of April 4, 1837, and that the grant, being subject to said Colonization Law and Regulations, could not be valid for a greater quantity than eleven square leagues nor become a Perfect title until the grant had been approved by the Departmental Assembly. Justice William w. Murray, while concurring in the conclusion to reject the claim, was of the opinion that the Colonization Law of August 18, 1824 and the Regulations of November 21, 1828 had been entirely repealed by the Act of April 4, 1837, but he did not think that the governor had the power merely as representative of the Supreme Executive to make the grant, and there was no evidence of any special power having been delegated to him. Chief Justice Joseph R. Reed also concurred in the conclusion to reject the claim but did not agree with all that was said in Sluss’ opinion, being himself of the opinion that, while the Colonization Law of August 18, 1824 was repealed by the Act of April 4, 1837, the Regulations of November 21, 1828 were not wholly repealed. He thought that the grant in this case was made, not under the colonization law, but under the regulations, that the colonization law regulated the disposition of the public lands within the states, and conferred upon the Supreme Executive the power to make all necessary regulations for the disposition of such lands within the territories, of which New Mexico was one; and the question in his judgment was not whether the law remained in force but whether the regulations continued operative when the grant was made, that it was manifest the law which governed the matter within the states might be repealed without at all affecting the regulations. Being subject to those regulations, he believed that the quantity of the grant was an inseparable bar to its validity. Justice Wilbur F. Stone dissented from the decree rejecting the claim and was of the opinion that the making of the grant in question was within the competency of the Supreme Executive, and that Governor Armijo was his appropriate ministerial agent in its execution.
Whitney promptly appealed the decisions rejecting the grant in the United States Supreme Court, which on April 15, 1901, held that a title under a Mexican grant made in 1845 by the governor was incomplete and would not make a case for confirmation under the colonization law or regulations where there was no evidence of the approval of the grant by the assembly and no further proceedings to obtain the approval of the Supreme Government, and there was no record of its existence in the Archives of New Mexico. It also held that no presumption that the Supreme Executive of the Mexican nation had delegated his power to the governor of a province could be indulged in for the purpose of holding a grant made by a governor in violation of the laws which had previously been adopted where there was nothing in the laws providing directly or indirectly for the general delegation of power by the Supreme Executive to make such grants, even if he himself had such power. In conclusion, the court stated:
Looked at from any point of view, we do not think the appellant has borne the burden of showing the validity of his grant, either directly or by facts from which its validity can be properly inferred within the cases already decided by this Court. The judgment of the court below must therefore be affirmed.
 S. Exec. Doc. No. 40, 42nd Cong., 1st Sess., 4‑6 (1873).
 lbid 7‑8.
 Ibid., 7‑8.
 The Estancia Grant, No. 10 (Mss., Records of the S.G.N.M.)
 An Act to establish the offices of Surveyor General of New Mexico, Kansas and Nebraska, to grant donations to actual sellers therein; and for other purposes, Chap.103, Sec. 8, 10 Stat. 308 (1854).
 Whitney v. McAfee, 3 N. M. (Gild.) 9, 1 P 173 (1883)
 Peralta v. United States, 3 Wall. (70 U.S.) 434 (1866)
 An Act to Confirm Certain Private Land Claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71(1860).
 Reynolds, Spanish and Mexican Land Laws, 121 (1895)
 United States v. Hartnell’s Ex'r, 22 How, (63 US) 286 (1860).
 Exec. Doc. No. 15, 49th Cong., 2d Sess,, 5‑7 (1887)
 An Act to confirm the title of the heirs of Gervacio Nolan, deceased, to certain lands in the Territory of Colorado, Chap. 202, 16 Stat. 646 (1876).
 Exec. Doc. No. 15, 49th Cong., 2d Sess., 1‑5 (1887).
 Whitney v. McAfee, 3 N. M. (Gild.), 1 P. 173 (1883).
 Chaves v. Whitney, 4 N.M. (Gild.) 611, 16 P, 608 (1888)
 Court of Private Land Claims Act, Chap 539, 26 Stat. 854 (1891).
 Whitney v. United States, No. 152 (Mss., Records of the Ct. Pvt. L. Cl.).
 Reynolds, Spanish and Mexican Land Law, 121 (1895)
 Ibid, 222
 4 Journal 74 (Mss, 1 Records of the Ct. Pvt. L. Cl.).
 Whitney v. United States, No. 152 (Mss., Records of the Ct. Pvt. L. Cl.).
 Whitney v. United States, 181 U.S. 104 (1901)