These are cross appeals from a judgment of the court of private land claims, confirming in the petitioner, Bergere, for herself and the other heirs of Manuel Antonio Otero and Miguel Antonio Otero, the title to 11 square leagues of land in the territory of New Mexico. The petition was filed in the court below, asking that the validity of the title to a very much larger tract of land in the above territory, alleged to have been granted in 1819 to one Bartolom e Baca by Acting Governor Melgares, might be confirmed to the heirs and legal representatives of Baca, of whom, she alleged, she was one.
The number of acres contained in the alleged grant was not stated, but it has been variously estimated at from half a million to a million and a half.
The judgment of confirmation was granted upon the ground, as stated by the court, that the grant to Baca was imperfect at the time of the cession of the department of New Mexico to the United States by the treaty of Guadalupe Hidalgo, and hence it could only be confirmed by the court for the amount of 11 square leagues, under subdivision 7 of section 13 of the act of congress of March 3, 1891 (26 Stat. 854, c. 539), creating the court of provate land claims. That subdivision reads as follows:
'No confirmation of any claims or lands mentioned in section six of this act, or in respect of any claim or title that was not complete and perfect at the time of the transfer of sovereignty to the United States as referred to in this act, shall in any case be made or patent issued for a greater quantity than eleven square leagues of land to or in the right of any one original grantee or claimant, or in the right of any one original grant to two or more persons jointly, nor for a greater quantity than was authorized by the respective laws of Spain or Mexico applicable to the claim.'
The petitioner thought the court below should have confirmed her title to the whole of the land described in the alleged grant, while the counsel for the government was of the opinion that the judgment ought not to have confirmed her title to any portion thereof. Both parties have therefore appealed from the judgment to this court.
In the course of the trial certain papers were put in evidence on the part of the petitioner, for the purpose of proving the alleged grant. They were written in the Spanish language; and a sworn translation thereof, also appearing in the record, reads as follows:
'To the Acting Governor: Don Bartolom e Baca, captain of the volunteer militia company of cavalry of the villa of Alburquerque, residing in the jurisdiction of Tome, before you with the greatest respect and subordination, as by law required, represents: That he has a number of sheep, horned cattle, and horses, without legitimate property on which to keep them together under shepherds, cattle herders, and horse herders, to take care of them, and secure their safety, they now roving over different places, exposed to all the contingencies arising from their being scattered. There being vacant on the other side of the Ab o Mountain a tract called the 'Torreon,' and which extends, on the north, to the Monte del Cibolo, on the south to the Ojo del Cuervo, on the east to the springs called the Estancia Springs, on the west to the said Ab o Mountain, he prays you to be pleased to grant the same in real possession, in the exercise of the powers upon you conferred by his majesty, in order to establish thereon a permanent ranch or hacienda, which he engages to occupy with his stock, sustaining the same with armed servants, who may defend it against the incursions of the enemy without abandoning it; and he will also, if possible, open lands for cultivation, whether irrigable or dependent upon the seasons, for the advancement of agriculture; and, although the water sources it contains are small and uncertain, he proposes to improve them with reservoirs and other appliances which will secure every advantage possible; and he affirms that it has at present no owner, and that it never has had any known owner.
'Wherefore he prays you to be pleased to grant this his petition in conformity with law, and to direct the royal judge of his district to give him legal possession, with the proper documents and other formalities which are required, whereby he will receive favor, grace, and justice. I swear that I do not act in bad faith, and in that which is necessary, &c.
'San Fernando, February 4, 1819.
'Bartolom e Baca. [Rubric.]'
'Santa F e, July 2, 1819.
'As he asks it according to law, and I understand that no injury results to any third party, but, on the contrary, increase of stock raising and agriculture under the conditions asked: